Old and New Originalism

[Sean Wilson]

I'm working on a book-draft right now, and I am having a terrible time trying to talk about what conservative law professors (mostly) have been doing with ideas of originalism over the last (say) ten years compared to the ideas that their forebears were talking about much, much earlier. The central problem I am having is that every distinction I find neo-originalists offering for how they are different from Bork-style originalists is premised upon something contrived. The intent-meaning distinction is actually part of the whole confusion. 

For the life of me, I can see only one real distinction. One covenants an institutional prerogative, the other a cultural one. An Institutional-Originalist posits that there are set of X-numbered people assembled in some official institution (a committee, a convention, etc.), and that "the real law" is what their prerogatives amount to. The name of the game is to define the people and argue about what the prerogatives consist of. The ultimate behavior here is a kind of adoration of idols.

This should be contrasted with a Cultural-Originalism who posits that the prerogatives of an historical epoch are what "the real law" is. The name of the game here is to fish through history at founding periods to find hegemonic frameworks and/or dominate social behaviors. Instead of idol-worship, the ultimate behavior (by the scholars) is adoration of an historic age (a kind of art-appreciation). Compare neo-originalism with, e.g., those in humanities who adore (say) the romantics. The only difference is that you try to plug this adoration into a legal system.  

Where is my error here? Isn't all this talk about original intent versus original meaning versus original expectations really a feigned and contrived way of organizing the map of beliefs? If I told you in ordinary speech that I intended, expected, or meant X -- wouldn't the distinction between these mind-terms only be of local use? That is, we could think of a situation where one word could work better in a given situation, but we could never build a system of philosophy that put walls between them. "I only interpret by looking to intentions," "I only do so only by looking to meanings,"  etc. All that's really said here at the end of the day is whether one purports to adore an institutional prerogatives versus a cultural one.

Would anyone care to dispute this idea with me, should they think it incorrect? 

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html