Originalism, Incorporated Rights & 1868

[RJLipkin at aol.com]

I think Earl  is probably right that the dichotomy between subjective 
intention and  public meaning  is too stark.  There needs to be at least a third  
alternative. Earl says the third alternative is "the established contemporary  
authoritative legal materials." Unfortunately, this third alternative doesn't  
answer the question of which type of originalism should prevail. In  
controversial cases, this alternative will be contested. More importantly, the  question 
of how to interpret "the established contemporary authoritative legal  
materials" will resurrect the question of whether subjective intention should  
prevail or public meaning. Any answer to this question will probably be  unable to 
escape the dichotomy the answer, "the established contemporary  authoritative 
legal materials," is designed to replace. Seeking some  Archimedean 
perspective from which to invigorate originals doesn't seem  possible. 
 
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-In-Chief 
_http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) 



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