Old and New Originalism

[Robert Sheridan]

So, um, this means we're free to interpret the text in a way that makes 
sense to us today in terms of our values such as they've evolved, a 
living constitution, in other words?

Thank you.

I thought so.

Thank goodness the Court has just the other day given us the right to 
shoot our neighbors either on the farm or in more target rich 
environments such as the cities.  I hardly know whether to order the 
six-shooter, the semi, or the full automatic.  I figure the Conlawprofs 
is a good place to ask.

rs

Have gun, will travel.

On 6/30/2010 1:42 PM, Jon Roland wrote:
> On 06/30/2010 02:16 PM, Sean Wilson wrote:
>> 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?
> It is not necessary to impute bad faith, but sufficient to discern the 
> ambiguities of the terms available to us in which to discuss the 
> questions. English, including legal English, is simply not 
> well-designed for constitutional construction. In the hard sciences we 
> invent new terms and give them more precise definitions than the terms 
> previously available to us. In this field we are impaired by the fact 
> that what we are discussing is how to make decisions about words we 
> did not invent and have not defined, and those who used them are no 
> longer available to interrogate.
>
> To understand our dilemma it is useful to examine a similar one, the 
> problem of understanding the writings of the ancient Maya from their 
> glyphs. There are living descendants of the ancient Maya, who we can 
> presume still speak a language similar to that of their ancestors, but 
> trying to associate that with ancient ideographs that are not phonetic 
> is an exercise in plausible conjecture. We can eventually arrive at a 
> model of meaning that seems to be supported by what we continue to 
> discover, but is not well supported by the fact that modern speakers 
> have not just evolved their language, but evolved in what kinds of 
> things they say in that language. If they speak about deities or 
> astronomical events or calendars at all, it is almost certainly not 
> about those of the ancients.
>
> Your distinction between institutional and cultural originalism 
> doesn't work. It is not a matter of "adoration" for lawgivers or an 
> historical epoch, but of the historical fact that the law we still 
> accept today was written by those lawgivers in that epoch. it is not 
> about reverence, but about a historical event that has continuing 
> authority. Indeed, every act of lawmaking is such an event, so if we 
> are going to take seriously a law made yesterday, or last month, then 
> we have no basis, logically, for not also taking seriously a law made 
> 223 years ago, if it hasn't been formally amended. There may be 
> uncertainties about what was meant then, but there are also 
> uncertainties about what was meant by lawmakers in the last session of 
> Congress, and you interrogate them, you will find plenty of uncertainty.
>
> Just because there is uncertainty doesn't mean we can't do competent 
> historical analysis to figure out what they meant or didn't mean. 
> Certainly may be elusive but we can develop a high enough level of 
> confidence to make important decisions. However, we must be willing to 
> always reexamine the historical evidence and not just rely on later 
> commentators or court precedents. That may take more time but it is 
> worth it to get it right, or at least as close to right as we can.
>
> -- Jon
>
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