The Fallacy of the "New Originalism"

[Earl Maltz]

First, I was responding to the assertion that "when the document was 
written, the choice of vague language (due process, cruel and unusual) was 
meant to be adaptive."  I took the phrase "was meant to be" as a reference 
to intent, not "public meaning."  If I mistook Frank Cross's meaning, I 
apologize.

Second, on the question of whether Bingham was an indisputable source, he 
was the person who wrote section one.  Therefore, if we are talking about 
whether the language "was meant to be adaptive" when it "was written," it 
seems to me that, at the writer, he is the canonical source.

Third, while I know that almost every other self-identified originalist 
takes either the original intent or public meaning approach, I think (for 
whatever that is worth) that the better approach would be to adopt the 
LEGAL meaning of the terms at the time that the amendment was 
written/ratified.  My best description would be "the best estimate of the 
way in which a hypothetical 'neutral' judge would have understood the 
language in 1868."  The reason that I take this view is simple:  contrary 
to Bill Nelson et. al., I believe the record supports the view that all of 
the language in section one had a well-established legal pedigree, and that 
the drafters (like the drafters of statures) understood that they were 
using legal terms of art, and both debated and altered the language of 
section one because of this understanding.  (This argument is made in great 
detail in a book entitled The Fourteenth Amendment and the Law of the 
Constitution.  Moreover, even if this was not their understanding, we are 
primarily concerned with the legal impact of section one, and thus, (in any 
event) it should be treated like any other legal document.

At 08:26 PM 8/28/2006 -0500, Frank Cross wrote:

>Well, first, I'm not sure that John Bingham would be an indisputable 
>source here.
>But more to the point, this goes to original intent, not original 
>meaning.  I thought we had moved on to original meaning.
>
>What's more, the reference to the "courts" resolution, under common law, 
>would seem to be an endorsement of judicial determination of the measure 
>of due process, which would change as common law inevitably changes.  This 
>certainly doesn't suggest that the definition is necessarily frozen.
>
>And certainly this demonstrates the complexity of finding an originalist 
>answer.
>
>
>At 07:54 PM 8/28/2006, Earl Maltz wrote:
>>The claim that "due process" was meant to be adaptive is wrong as a 
>>matter of historical fact.  When asked during the debates what "due 
>>process" meant, John Bingham replied "the courts have settled that long 
>>ago, and the gentleman can go and read their decisions."
>>
>>At 06:59 PM 8/28/2006 -0500, Frank Cross wrote:
>>
>>>To me, the important issue has been ignored.
>>>That is the meaning of originalism, when the current meaning of the text 
>>>seems to differ from its original meaning.
>>>I have spoken with some supporters of originalism who seem to accept 
>>>that the current meaning prevails.  In many cases, use of the current 
>>>meaning might well prevail out of original imeaning -- when the document 
>>>was written, the choice of vague language (due process, cruel and 
>>>unusual) was meant to be adaptive.
>>>
>>>But this would seem to considerably reduce the practical significance of 
>>>originalism, to put current meaning ahead of original meaning in case of 
>>>conflict.
>>>
>>>
>>>At 06:46 PM 8/28/2006, Keith E. Whittington wrote:
>>>>Content-class: urn:content-classes:message
>>>>Content-Type: multipart/alternative;
>>>>         boundary="----_=_NextPart_001_01C6CAFC.3F845C2F"
>>>>
>>>>I think originalist theory has been pretty explicit about this for the 
>>>>past, oh, 20 years or so (I must confess I think too much can be made 
>>>>of the distinction between original meaning and orignal intent, but 
>>>>"expectations" v. "meaning" is an important distinction).  But there 
>>>>are prominent theoretical statements and constitutional law 
>>>>pronouncements from earlier on that are not just unclear but actually 
>>>>emphasize "original expectations."  Berger often did, and assertions 
>>>>about the death penalty and the Eighth Amendment sometimes took this form.
>>>>
>>>>As I've written elsewhere, I think there are important points of 
>>>>convergence between originalist and non-originalist theorizing in 
>>>>recent years, but there are still important differences between 
>>>>originalists and others.  Some of the differences are practical -- how 
>>>>should we go about the task of interpreting? From that perspective, 
>>>>someone like Dworkin just might be a really bad originalist, far too 
>>>>willing to assume that the original text embodies whatever principle 
>>>>the reader thinks would be normatively attractive rather than the 
>>>>principle that it originally had.  No need to do the historical work, 
>>>>I'll just read the text!  Some of the differences are theoretical -- 
>>>>Dworkin is clear, for example, that he would be willing to ignore the 
>>>>original meaning of the text if the current semantic meaning of the 
>>>>text could support something he found more attractive than the original 
>>>>meaning.
>>>>
>>>>Keith Whittington
>>>>
>>>>
>>>>----------
>>>>  On 8/28/06, LAWRENCE SOLUM wrote:
>>>>
>>>>In fact, I think that it is simply not the case that "'original public 
>>>>meaning' originalists  rely (for the most part) on original 
>>>>expectations as to application" in the relevant sense.  Certainly 
>>>>Barnett does not & he has been quite explicit about this.  Of course, 
>>>>original expectations about application are relevant to original public 
>>>>meaning--as evidence.  Original intentions are relevant in the same 
>>>>way--as evidence.  Of course, there is a good deal of originalist work 
>>>>that doesn't invvolve explicit theorizing & some of that work may not 
>>>>be clear as to the role of original expectations.  But a lack of 
>>>>reflection is not the same as a position.
>>>>
>>>>
>>>>On 8/28/06, MARK STEIN 
>>>><<mailto:markstein at prodigy.net>markstein at prodigy.net> wrote:
>>>>Both the "original intent" originalists and the "original public 
>>>>meaning" originalists  rely (for the most part) on original 
>>>>expectations as to application.  So I don't think that this variegation 
>>>>of the theory is a good enough reason to claim that living 
>>>>constitutionalism, which rejects original expectations, is now the best 
>>>>interpretation of originalism.
>>>>
>>>>_______________________________________________
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>>>
>>>**********************************************************
>>>
>>>Frank Cross
>>>McCombs School of Business
>>>The University of Texas at Austin
>>>1 University Station B6000
>>>Austin, TX 78712-1178
>>>_______________________________________________
>>>To post, send message to Conlawprof at lists.ucla.edu
>>>To subscribe, unsubscribe, change options, or get password, see 
>>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>
>>>Please note that messages sent to this large list cannot be viewed as 
>>>private.  Anyone can subscribe to the list and read messages that are 
>>>posted; people can read the Web archives; and list members can (rightly 
>>>or wrongly) forward the messages to others.
>>
>>**********************************************************
>>
>>Frank Cross
>>McCombs School of Business
>>The University of Texas at Austin
>>1 University Station B6000
>>Austin, TX 78712-1178