Non-originalist opinions

[Steven Jamar]

We talk of "originalism" in a variety of ways, I think, including at  
least the following:

1.  What was the problem being addressed and how did the provision at  
issue address it then?
2.  What was the particular meaning of the language in that time,  
decontextualized.

The linguist approach of Sean Wilson is informative, but not  
particular useful as a complete approach to legal interpretation --  
the domains of law and linguistics are different.  As with psychology,  
often the law is superior in its practical application in the workaday  
world to which it must concern itself, howsoever rough its  
approximations and its lack of seeming sophistication.  Law is about  
afixing resposibility (in part), not about fixing mental defects or  
even understanding them deeply.  Law is about the rules to govern  
social interactions, not about the drift of meaning and use of words  
and such over time.

Of course words have a particular meaning at a particular time,  
howsoever wrong this may be from a linguistic sense of "original  
meaning."  What words point to in one era may well be different in  
another era in the common usage, or even in a specialized usage.  Some  
of that difference comes from changed circumstances; some from changed  
knowledge; some from unintentional historical drift (or whatever you  
wish to call it).

The original constitution was intended to apply to changing  
circumstances.  And it was well known to the framers and adopters that  
things would change and the document would need to be applied as  
things changed.  Even Scalia knows that we apply the term "arms" to  
things other than flintlocks, swords, axes, and spears, and that we  
must do so.  One need look no further than the copyright and patent  
clause for proof that the framers knew things changed.  While Irving's  
"Rip Van Winkle" comes a bit later, changes of the magnitude Rip  
noticed were happening all around the framers.

We run into a level-of-abstractions problem, of course.  We want to  
avoid tyranny now as in the past.  So we want to avoid the  
aggrandizement of power now as in the past.  But, just what is  
tyrannical or what is considered tyrannical is subject itself to  
change over time.  It is not just the tyranny of King George we fear.   
And the nature of power and the ability to limit it and the means to  
limit it have changed.

So has liberty.  We want liberty.  Is it just the liberty of 220 years  
ago?  Or is it our understanding of liberty today?  Equality of 150  
years ago or equality as we think of it today?  Under what theory of  
political science, human condition, justice is it proper to be rigidly  
bound (as opposed to generally constrained) by the narrow meaning and  
application of words as opposed to the broader and evolving concepts  
of them?  Must we exclude Muslims from the protection of the religion  
clauses because the only ones in the U.S. at the time of adoption of  
the 1st Amendment were slaves?  Must we exclude Buddhists because they  
don't believe in a god like the Zeus of the Greeks or the God of the  
Hebrews?

"Originalism" itself is a shifting, moving concept.  We should attend  
to modern substance and necessities while not ignoring ancient  
understandings.  There is wisdom in avoiding tyranny through diffusing  
power among many.  There may even be wisdom in allowing a right to  
keep and bear arms as one (now vanishingly small) stick in the bulwark  
against tyranny.  But neither the concept of avoiding tyranny nor the  
understanding of the meaning of the phrase keep and bear arms 220  
years ago is sufficient to decide constitutional issues today.  More  
is needed.

Allowing/requiring that we look at more than some originalists would  
limit us to is not a panacea and is not easy.  What should be  
considered and what is out of bounds will remain contested.  But  
fortunately the Court has not considered itself too bound in the way  
some originalists think it should be.

We cannot be fully bound by words and deeds of 200 plus years ago.   
Fortunately, we are not.

Steve

-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/


"In these words I can sum up everything I've learned about life:  It  
goes on."

Robert Frost



On Apr 21, 2009, at 8:58 AM, Miguel Schor wrote:

> Well, whatever argument there might be for originalism in the  
> American constitutional order, there is not much support for the  
> idea that it contributes to the rule of law in any meaningful  
> sense.  Unless, of course, one believes that other democratic  
> nations (say Canada, for example) lack the rule of law.  No other  
> polity that I know of takes originalism as seriously as we do and  
> there are examples of supreme courts abroad fairly explicitly  
> eschewing originalism.
> Miguel Schor
> Associate Professor of Law
> Suffolk University Law School
> 120 Tremont St.
> Boston, MA 02108
> 617-305-6244
> SSRN Webpage http://ssrn.com/author=469730
>
>
>
> ---- Original message ----
>
> Date: Mon, 20 Apr 2009 23:16:28 -0400
> From: Patrick Wiseman <pwiseman at gsu.edu>
> Subject: Re: Non-originalist opinions
> To: conlawprof at lists.ucla.edu
> >On Mon, Apr 20, 2009 at 4:49 PM, Sean Wilson  
> <whoooo26505 at yahoo.com> wrote:
> >
> >> The biggest mistake that conservative law professors make is to  
> think that
> >> when words like "cruel" are spoken, that they carry with them a  
> certain
> >> behavioral regiment applicable after the word is enshrined. That  
> because
> >> generation-x says "this is my example of cruel," that somehow,  
> generation-y
> >> has to say "never let cruel mean something different from how  
> generation-x
> >> behaved." There is absolutely nothing in linguistics which  
> justifies this.
> >> All that this ever was, was cultural idolatry.  I have a paper  
> that I am
> >> finishing up that demonstrates this.
> >
> >I am by no means a "conservative" law professor, but you miss the
> >point entirely. We (law professors) are not doing linguistics, we're
> >doing law. And, while I don't personally buy it, originalists have a
> >rather important point to make when they invoke "original meaning".
> >It's called the Rule of Law. When laws are enacted, the argument
> >goes, they mean what they mean. And the Constitution is enacted law,
> >and so means what it meant, when enacted. For those laws later to
> >"mean" something else, according to whoever might be interpreting
> >them, is to abandon the Rule of Law. As I say, I don't buy
> >originalism, in any of its forms, because I am unpersuaded that we
> >should be governed by the lights of the less enlightened, and
> >originalists must persuade me otherwise. But your arguments from
> >linguistics are, frankly, completely beside the point.
> >
> >Patrick
> >--
> >Patrick Wiseman
> >Professor of Law
> >GSU College of Law
> >_______________________________________________
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