Non-originalist opinions

[Sean Wilson]

One who says that Brown violates the "original meaning" of the sentence, "No State shall deny ... equal protection," says, in essence, that the sentence is a code of some sort. That it has some sort of secret language or something. Like you have to go into the temple to see what it really says. (It reminds me of Wittgenstein's comments about private languages). 

In fact, the sentence doesn't need much deciphering as an English sentence at all -- worst case, it's a little poetic. It might be similar to the way one reads poetry when seeing it. It means to give people certain things and to provide an even-handed sort of thing.

But the point is that the meaning of the sentence is NOT determined by how post-Civil War culture behaved. That is a CONSTRUCTION. That is only an interpretation of the meaning, not the meaning itself. There are many possible behaviors that conform. That would be like saying that when Socrates first used the term Good, that we are forever bound by that implementation. The phrase "equal protection" means a family of things and has many accompanying behaviors. You cannot utter something flowery and have it mean only what the first behavioral output is. Language doesn't work that way.  If you want to regiment with language, you need rigid designators and complicated sentences. There is no such thing as an original meaning of a word that asks a person to use judgment to "follow" it.  

Imagine the constitution saying, "you have the right to dance." If they dance a certain way in 1787, is that the "original meaning" of the term? It is not, because language is not a picture. It doesn't work that way.

What I think you mean to say is that Brown is not obedient to the original racial ideology that prevailed in the mid 1800s. This is about politics, not language.    
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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________________________________
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
To: Richard Dougherty <doughr at udallas.edu>; "griffin, stephen m" <sgriffin at tulane.edu>; Mitch Berman <MBerman at law.utexas.edu>; CONLAWPROF at lists.ucla.edu
Sent: Monday, April 20, 2009 5:09:02 PM
Subject: RE: Non-originalist opinions


Brown v. Board of Education may not have expressly and unambiguously the rejected original meaning of the Fourteenth Amendment, but it came pretty close.
 
Larry Rosenthal
Chapman University School of Law
 
From:conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Richard Dougherty
Sent: Monday, April 20, 2009 1:38 PM
To: griffin, stephen m; Mitch Berman; CONLAWPROF at lists.ucla.edu
Subject: Re: Non-originalist opinions
 
A couple of people have mentioned Blaisdell.  But I'm not sure if the original question allows that answer -- if I have the question right.  The question, I take it, is where the Court has avowedly rejected original meaning.  But in Blaisdell the Court seems to go to great lengths to argue that it is supplying the original meaning.  E.g.: "But where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details. That is true of the contract clause. The necessity of construction is not obviated by [p427] the fact that the contract clause is associated in the same section with other and more specific prohibitions. Even the grouping of subjects in the same clause may not require the same application to each of the subjects, regardless of differences in their nature."
I think the same might be said of Brown.

Not that either interpretation is correct, but the examples might not respond to the question asked.  I would be very interested in a reply that did so (thought I can't think of a case myself).
Richard Dougherty


-----Original Message-----
From: "Griffin, Stephen M" <sgriffin at tulane.edu>
Sent 4/20/2009 2:52:54 PM
To: "Mitch Berman" <MBerman at law.utexas.edu>, CONLAWPROF at lists.ucla.edu
Subject: RE: Non-originalist opinions
This is similar to something Keith Whittington said in his book on originalism.  I thought then the question doesn’t get to the point because wouldn’t this be against the conventions of judicial opinion writing?  Consider a generalization of the question – how many decisions of the Court acknowledge there are powerful arguments against the holding but then shrug and decide the case with an “oh well, we don’t buy those arguments, case decided?”  Doesn’t strike me as very realistic.  Judicial opinions are constructed to persuade and do not necessarily concern themselves with refuting all arguments against the holding.
 
What we should look for are opinions where the circumstances show that the Court knows there is substantial evidence of original meaning against the holding.  Then you have some candidates – probably Blaisdell, Adamson (especially Frankfurter’s reaction to Black’s dissent), and, of course, Brown.
 
From:conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mitch Berman
Sent: Monday, April 20, 2009 2:22 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Non-originalist opinions
 
Larry Alexander has asked me to ask this question of y’all:
 
Can anyone point us to Supreme Court opinions that acknowledge that the original meaning (authorially intended, public meaning, etc.) of some provision or clause was in fact X, or very probably was X, and yet end up endorsing some competing interpretation, Y?
 
Thanks in advance.
 
Mitch Berman
The University of Texas at Austin
 
 
 
 
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