originalism and moral skepticism
lsolum at gmail.com
Sun Sep 3 09:34:10 PDT 2006
My error. I read "restraint" as expressing the same idea as the second
sentence. Mark is right that originalsm cuts across restraint/activism
insofar as those terms refer to striking down legislation. I take it that
Frank's post also is based on my mistake.
Lawrence B. Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
504 East Pennsylvania Ave.
Champaign, IL 61820-6909
lsolum at gmail.com
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...... Original Message .......
On Sun, 3 Sep 2006 09:04:04 -0700 (PDT) MARK STEIN <markstein at prodigy.net>
>All I mean by "restraint" is a reluctance to strike down laws as
unconstitutional. Originalism is not restraint because while originalists
(e.g. the ones on the Supreme Court) are opposed to striking down some
laws, they are eager to strike down others.
>Lawrence Solum <lsolum at gmail.com> wrote:
>I should like to add that the assertion that originalism does not impose
restraint is controversial. This assertion is not self-evident and needs
to be established with argument. The argument that Mark offers--"It is . .
. quite another to impose the moral views of the Founders" is not clear to
me. Two possibilities. 1) Mark may mean that originalism just is the view
that results in particular cases should be the results that best conform to
the moral views of the framers. This would be a peculiar form of original
intentions orginalism; it is certainly not the predominant form of
originalism. 2) Mark may mean that all forms of originalism lead to the
imposition of the moral views of the Founders. If this is his assertion,
then some additional points need to be considered. Let's take "original
meaning originalism" (in the Barnett/Balkin formulation) as our exemplar:
(a) on a variety of constitutional issues, the assertion that original
meaning originalism leads to the impositon of the moral views of the
Founders is simply false; the original meaning of bicameralism, for
example, does not lead in any straightforward way to the moral views of the
Founders; (b) the "moral views of the Founders" are not directly relevant
to constitutional meaning if your view is that what counts is the original
public meaning of the constitutional text; (c) even with respect to the
general and abstract provisions where moral views of the founding
generation might be relevant to determining original public meaning, it is
hardly clear that original meaning originalism requires their
implementation. For example, it might be argued that the framers of the
14th amendment favored segregation, but this does not entail that the the
provisions of section one authorize segregation--as McConnell, e.g., has
>More fundamentally, the assertion that originalism imposes restraint is
only meaningful as compared to some baseline. It seems quite obvious the
original meaning originalism is restrained as compared to some
constitutional theories, e.g. as compared to Dworkin's theory or to strong
constitutional instrumentalism. As compared to other theories, originalism
may impose less restraint, e.g., as compared to a theory that requires
stict adherence to a strong doctrine of both vertical and horizonal stare
>On 8/24/06, MARK STEIN <markstein at prodigy.net> wrote:
>The "Mark" to whom Tim replies is Mark Graber, but let me just repeat the
old point that originalism is not restraint. It is one thing to decide
moral questions through democratic processes, and quite another to impose
the moral views of the Founders-- views that on many issues are almost
universally rejected today.
>Mortimer Sellers <msellers at ubalt.edu> wrote:
>I would like to come out as one of those people (dismissed by Mark as
>"mistaken"), who believes that judges and citizens should generally
>defer to the liberal protections and democratic processes embedded in
>the U.S. Constitution.
>This gets to the heart of constitutionalism. I think that it is decent
>humility, not moral skepticism, which should encourage us to respect
>well-designed constitutional procedures of democratic decision-making.
>On particular moral questions, I may think that I know the answer, but
>be mistaken. This does mean that there is no right answer, but that I
>should recognize the possibility of my own error and sometimes defer to
>good procedures, even when I have not been completely convinced of the
>result that they yield.
>John E. Cribbet Professor of Law
>University of Illinois College of Law
>504 East Pennsylvania Avenue
>Champaign, IL 61820-6909
>lsolum at gmail.com
>http://home.law.uiuc.edu/~lsolum/ (homepage at the University of Illinois)
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