Meaning v. Expectations

[Griffin, Stephen M]

I'm not convinced here, it depends on what you mean by "holds the
opposing view."  Certainly arguments on the basis of expected
application have been made in specific doctrinal contexts.  I think
that's what counts because otherwise it is too easy to create a version
of originalism that, while being proof against various objections, has
nothing to do with how original intent is actually used by lawyers and
judges.

 

One colloquial form of expected application arguments is "the framers
would be rolling in their graves if they knew about X decision that held
the Constitution means Y." 

 

Steve Griffin

Tulane Law School

 

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mitch Berman
Sent: Monday, January 29, 2007 10:01 AM
To: RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
Subject: RE: Meaning v. Expectations

 

The fullest examination of the meaning/application distinction that I
know of is Greenberg & Litman, The Meaning of Original Meaning, in the
Geo. L.J. (1998).  

 

I'm not aware of anybody who argues "against the distinction"; everybody
seems to acknowledge that the distinction is valid.  (If I'm mistaken
about this, I'd be grateful for the correction.)  A related question
(and perhaps, Bobby, this is what you're interested in?) is whether,
once the distiinction is recognized, contemporary interpreters ought to
follow the original meaning or the originally expected applications (or
neither).  

 

My sense is that, while some commentators argue persuasively that judges
do not owe fidelity to the originally expected applications, (almost)
nobody in fact holds the opposing view.  Indeed, many of the leading
contemporary originalist theorists have vigorously insisted that
application originalism is a strawman.  I discuss this issue, with some
cites to the relevant literature, in my brief reply to Jack Balkin's
critique of application originalism, available here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957630

 

Mitch

 

Mitchell Berman

The University of Texas at Austin

 

 

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Friday, January 26, 2007 2:41 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Meaning v. Expectations

 

        I'm looking for sources arguing for and some arguing against the
distinction between the meaning of a constitutional provision and the
expected application of that provision. Are there some standard texts on
this particular issue? Thanks.

 

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
<http://ratiojuris.blogspot.com/> 
Essentially Contested America, Editor:
http://www.essentiallycontestedamerica.org/

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