Originalism

[Malla Pollack]

I must respectfully disagree with Prof Scarberry despite his much greater
expertise.  As a practical matter, most people born into an existing legal
system never challenge it in any major way.  We are socialized into
accepting its legitimacy.  The court system (of necessity) accepts as still
binding any statute enacted by the legislature (even generations ago) if it
has not been amended, revoked, etc by more current authority.  Thus, a rule
of recognition exists.  However, none of this means that any now-living
person must either:
a) accept the system (though the system will retaliate if she does acts on
her non-acceptance in certain ways); or
b) accept any other person's view of the meaning of the basic structural
document setting up the polity (the constitution).
Usually disagreement results in socially acceptable actions by later persons
such as:
a) passing new legislation (which supersedes that passed by older
generations, and
b)  re-interpreting foundational documents (the constitution).
Originalism is not the only way to prevent chaos.


In fact, IMHO the only reason the Constitution has survived this long is the
country's willingness to revise interpretation.

Malla

On Thu, Sep 23, 2010 at 2:41 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

>  Malla’s approach creates great difficulties in understanding the
> persistence of law. In The Concept of Law H.L.A. Hart described the need of
> any developed legal system for rules of recognition (e.g., Article I of the
> Constitution, which tells us when a bill becomes law), rules of change
> (e.g., Article I for ordinary changes by legislation and Article V for
> changes to the Constitution itself), and rules of adjudication. If we treat
> as null and void any law enacted (or Constitution adopted) at a time when a
> majority of those now living were too young to exercise political rights,
> then we destroy the continuity necessary for a developed legal system and
> for a healthy society. Thus the rule of change does not provide for
> automatic repeal of such enactments. The Constitution’s preamble in fact
> refers to its establishment as being designed to preserve the blessings of
> liberty for future generations. It can’t have that effect if it
> automatically becomes nonbinding for protection of those future generations.
>
>
>
> We certainly can argue about the content of our rules of change and of
> adjudication – to what extent does our system give legitimacy to judicial
> actions that modify the law? Of course the common law tradition gave a very
> key role to judges in developing the law, and under the English system the
> Parliament’s power  was in theory unbounded. The extent to which a written
> Constitution should constrain legislatures and judges – and how it should
> constrain them – is of course a critical question.
>
>
>
> Sorry for going on about something that is probably a commonplace.
>
>
>
> Mark Scarberry
>
> Pepperdine
>
>
>
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Christopher Green
> *Sent:* Thursday, September 23, 2010 12:14 PM
> *To:* 'CONLAWPROF Prof list'
> *Subject:* RE: Originalism
>
>
>
> "I disagree that my inalienable right to self government (whether I hold
> office or not) is less robust than that of my ancestors."
>
>
>
> Fair enough, but distinguish *self*-government from the government of
> other people, or the use of resources in the possession of others.
>  ------------------------------
>
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Malla Pollack
> *Sent:* Thursday, September 23, 2010 2:00 PM
> *To:* CONLAWPROF Prof list
> *Subject:* Originalism
>
> "Fair enough, for non-officeholders, though we can regard Article VI as
> limiting the transfer of title to future generations, and the lack of a
> (moral) power to do things inconsistent with the Constitution seems
> equivalent to a morally-binding promise to obey the Constitution, doesn't
> it?" C. Green
>
> Malla Pollack= I disagree that my inalienable right to self government
> (whether I hold office or not) is less robust than that of my ancestors.
>
> On the more major point, the Court and Congress rarely (if ever) act merely
> to "say what the law is" without real-world effect.
>
> PS I apologize for my email sending out an incomplete message earlier.
>
> Malla
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20100923/a052d115/attachment.htm>