Real originalism v. Anachronists.
CJohnson at law.utexas.edu
Fri Apr 16 12:05:34 PDT 2010
I wish originalists were better historians. What counts the Founders is the applications, the programs. They are searching for words, and use lots of synonyms (eg commerce, navigation, foreign trade). They have almost no loyalty to principles or philosophers unless it furthers their program. All words are weapons in some political war, and the words mean the programs. Thus they wanted to get the war debts paid, and they wanted to punish imports. They were mercantilists who believed as GW put it, that all imports were enervating effeminizing luxuries, best suppressed.
What they cared about really ended by 1794. Madison wrote a column in Freneau' paper (anonymously) saying that he had been wrong about the extended republic, and the flame of Republican virtue resided only in small homogeneous states like Virginia. Hamilton had paid enough of the war debts to be able to borrow from the Dutch at extraordinarily low interest rates. They had given up trying to enforce payment of the war debts against Georgia even after the victory in Chisholm, even though payment of the just war debts was the major reason for the C. The Jay treaty meant we promised not to punish the British with punitive tariffs although that would been in the top five programmatic reasons for the C. The Constitutional movement had split in two, Hamilton and Jefferson and was never able to accomplish anything more. The C is a viciously anti-state document but the National Government was up and running, and GW was a hero, the beloved Father of his Country.
To emphasize the Bill of Rights is pure 20-21st century anachronism. The Bill of Rights was a sop, a tub thrown to a whale. There had to be something called a Bill of Rights to pull in NC and RI, but not much of substance. Nothing of any importance was going to given to Rogue Island. That despicable corner of the Continent had done more damage to the Union, than the whole state was worth.
They did not know very much about the future. It had not happened yet. They were not sitting down to solve our problems. Yes they would cite eternal principles such as the Blessings of Heaven on Salvery and the inevitable rule that women were like children, represented by the male of the family, but none are very attractive. We alas are going to have to solve our own problems.
There are people who say that a close reading of 1787 text or ratification debates will solve our problems because they were so wise. If you read the text 7 times, you begin to believe that they are talking to you across the centuries, much as Moses does. By the 10th reading they are solving your marital problems and proving that your spouse got it wrong last night and you got itright. Difficulty is that they could not see the future. It had not happened yet. They were solving the problems of May 1787, which were considerable. That is originalism. They did not even know about January 1787 because it had not happened. We need to stop the nonsense that the Founders were writing for us, when they did not even know we existed. Which we didn't.
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
For reviews, chapters, discounts and news on Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, April 16, 2010 11:12 AM
To: 'CONLAWPROFS professors'
Subject: What originalists supposedly look to
Before we make generalizations about what originalists supposedly look to, and whether they ignore the Civil War Amendments, we might want to look closely at what actual originalists do. For instance, many originalists - both scholars and some activists - have been looking very closely at the Fourteenth Amendment as to the most recent Fourteenth Amendment controversy, which is whether the right to keep and bear arms should be incorporated against the states. Likewise, many originalist scholars (including conservative ones) have spilled much ink over the Fourteenth Amendment.
I'm sure there are plenty of originalist scholars who focus on the Framing era because that's what they find especially interesting. Likewise, I'm sure that some people reasonably think that as to particular issues, the 1787-1791 original meaning is more relevant than the 1866-1870 original meaning, since those issues strike them as outside the scope of the Civil War Amendments. (I take it that much of the arguments that people in the Tea Party movement are making fall into that category.)
Likewise, plenty of laypeople who vaguely sympathize with originalism but just don't know any better - much as, for instance, there are plenty of laypeople who vaguely sympathize with the "living Constitution" model but just haven't thought carefully about what it means in various areas, such as the right to keep and bear arms. But none of this tells us about what "Originalists" generally do or think.
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