The Fallacy of the "New Originalism"
markstein at prodigy.net
Mon Aug 28 19:48:36 PDT 2006
What is the distinction between original meaning and original expected application if the original expected application of a vague term like "due process" or "equal protection" is considered to determine the original meaning? In my opinion, an originalist who says he is interpreting original meaning, and would generally enforce original expectations (as "evidence," or whatever) should not share the title "originalist" with a living constitutionalist who would reject original expectations. But maybe I am expressing this opinion 10 or 20 years too late.
Lawrence Solum <lsolum at gmail.com> 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 <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.
Lawrence Solum <lsolum at gmail.com> wrote: But in this case it seems to me that originalism itself has moved from "original intent" to "original public meaning." That movement, plus Balkin's argument about the distinction between original meaning and original expectations regarding application is a debate within originalist theory. It isn't a matter of camps and sides; its a matter of getting at the right answer to a question of constitutional semantics.
On 8/28/06, MARK STEIN <markstein at prodigy.net > wrote: I don't object to the reasoning of Balkin and Dworkin, but I don't think that such views should call themselves originalist, much less claim to be the true and proper originalism (as well as the true and proper living constitutionalism), leaving the original originalists adrift in search of another name.
Once a theoretical camp has chosen a name for itself, such as "originalist" or "libertarian," it is not polite to glom onto that name if you are not in their camp. Only if you can argue that the original usage of the name is misleading should you fiddle with it.
In this case, the terms "originalism" and "living constitutionalism" accurately describe the two camps. Of course, the living constitutionalists use some original elements, just as everything that is alive and growing retains original elements. But the originalists claim to use more that is original.
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