The Merits of Originalism

[Paul Finkelman]

I did misunderstand you. sorry

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> Howard Schweber <schweber at polisci.wisc.edu> 08/26/07 11:07 PM >>>

Respectfully, I think there is a basic misunderstanding here.  I am not 
in any way interested in arguing in favor of"originalism based on the 
Framers intent."  I was merely exploring what I took to be some of the 
histoiriographic pitfalls involved in others' invocation of that -- to 
my mind utterly illusory -- ideal.

Howard Schweber
Dept.of Poli. Sci.
UW-Madison


Paul Finkelman wrote:
> I don't want to get too involved in this debate, but I do think that
if
> Howard is going to argue for orginalism based on the "Framers" intent
it
> would be useful to actually give us examples of framers.  Neither
> Jefferson nor Adams were at the Philadelphia Convention, nor were they
> even involved in the framing of the Bill of Rights.  They may be
> founders -- they are emphatically not "Framers."
> Paul Finkelman
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>      and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
>
> 518-445-3386 
> pfink at albanylaw.edu
>   
>>>> Howard Schweber <schweber at polisci.wisc.edu> 08/26/07 10:52 AM >>>
>>>>         
>
> First, I have to take issue with Prof. Wilson's monolithic 
> characterization of 18th century legal culture.  Certainly among the 
> Framers there were individuals who believed in natural law ideals 
> (Jefferson and Adams come to mind), but the principles of legal 
> positivism have roots that go back into the tradition of customary
law, 
> itself a highly positivistic (if decentered) conception of lawmaking 
> authority.  Harold Berman has beautifully documented the way 
> Blackstone's immensely influential treatises grew out of the
historical 
> school of common law understanding in which natural law principles 
> served an essentially ceremonial function, a point which emphasizes
the 
> continuing importance of the tradition customary law.  And
Blackstone's 
> Commentaries were more prescription than description; historical
studies
>
> of actual common law pleading and adjudicative practices give short 
> shrift to any notion of common law lawyers and judges making arguments

> from eternal moral verities.
>
>
>