Non-originalist opinions

[Bob Sheridan]

It seems that there's more poetry than law in constitutional lawmaking, 
poets being the unacknowledged legislators of the world, according to a 
source I've forgotten, although Allen Ginsberg howls into mind.

Perhaps it would be as useful to ask by way of contrast which decisions 
seem to rely least on originalist language. The words "congruent and 
proportional" from /Boerne/ are hard to find in the text or early 
opinions. Rehnquist as poet, one might say.

So the question appears to be, "How should "new" ideas be created to 
decide contemporary crises?" The answer, I respectfully submit, is that 
the council of elders, the wise-men and -women, the Areopagitica, must 
look into the ancient wellsprings of their society and come up with, 
formulate, invent, something which not only addresses the question once 
and seemingly for all, although the principle may be abandoned or 
modified next season for all they know, but be cast in such a way as to 
meet immediate acceptance. The future will have to take care of itself. 
The best the decisionmakers can do is to do their best, consulting all 
of their sources in the process. If original meanings were so perfect, 
there would seem to be no need for the current question to have arisen.

rs
sfls

Theodore Ruger wrote:
> Dear Mitch et al,
> 2 opinions that come to mind are the Jackson and Frankfurter 
> concurrences in Youngstown, among the most explicit rejections of 
> originalism I'm aware of though they stop a little short of the 
> circumstance Mitch describes. Jackson levies a strong indeterminacy 
> objection -- originalism is useless because the Framers’ meaning must 
> "be divined from materials almost as enigmatic as the dreams Joseph 
> was called upon to interpret for Pharaoh” which supply only “more or 
> less apt quotations that largely cancel each other”.
>
> Frankfurter goes further and makes a broad claim about the framers' 
> view of original meaning analysis itself, ala Jeff Powell: “Not the 
> least characteristic of great statesmanship which the Framers 
> manifested was the extent to which they did not attempt to bind the 
> future.” Later he maintains that "it is an inadmissibly narrow 
> conception of American constitutional law" to "disregard the gloss 
> which life has written upon" the words of the document.
>
> I haven't seen any current justice expressing similar views in this 
> way. Breyer is probably the closest but occasionally purports to be 
> able to discern and apply original "purposes", as in his Van Orden 
> concurrence.
>
> Best,
>
> Ted
>
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu on behalf of Mitch Berman
> *Sent:* Mon 4/20/2009 3:22 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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