Originalism

There is a good discussion of constitutional originalism over at The Volokh Conspiracy – sparked by a post by Randy Barnett:

Of course, like history, originalism can be practiced badly, by cherry-picking or distorting the evidence of meaning to reach a preordained conclusion, which is why I resist relying upon the findings of any particular originalist work that had not been critiqued or confirmed by others who know that particular subject, however excellent and sensible I may find it to be.  And the original meaning of the Constitution may not always be sufficient to decide particular cases and controversies without the development of constitutional doctrine that is not itself in the Constitution, but is needed to implement what is.  It was mistake of the old originalism to try to resolve all current cases by asking “how the Framers would have decided them.”  That is really a counter-factual question, not an empirical one about meaning.  Yet the doctrine that is necessary to implement what the Constitution says is also found in written legal texts expressed by language that lawyers are trained to understand without the assistance of historians.

If it was genuinely not possible to identify the meaning of language at a previous point in time, then old contracts could not be enforced according to their meaning at the time of their formation (which is what the law of contracts requires), old statutes would be a mystery and impossible to follow or enforce, and classic Supreme Court opinions would be impossible to understand.  The only language that is claimed to be inscrutable mystery to lawyers (but not historians) is the foundational law provided by the U.S. Constitution.  How are we lawyers able to follow the 200+ year-old-opinions in MarburyGibbons and McCulloch, but not the Constitution itself, written a mere 30-40 years earlier?  Has anyone seriously suggested that lawyers need to consult historians to tell them the communicative content of these precedents?

The reason for claiming that the Constitution alone among legal texts is inaccessible to lawyers is not that its original communicative content is unclear, but that some of its original meaning is all too clear and some people don’t like it, so it must be gotten rid of somehow.  The Progressives were very candid about this, referring to the “Horse-and-Buggy” Constitution.  They knew what it meant, but it got in their way.  So, for better or worse, the written opinions of long dead New Deal and Warren Court Justices have replaced important parts of the the written text of the Constitution.  You don’t need to be a historian to know there’s a difference in meaning between the two sources of law, but it helps to be a lawyer.

More here and here.

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7 thoughts on “Originalism

    • Augger,

      This is because ALL “living constitution” arguments are actually for the rule of man, not the rule of law. And because man is so badly flawed, any argument for the rule of man must — itself — be flawed.

      Now, this is not to say the rule of law according to men will not be flawed, as well. But at least the rule of law is fixed and knowable and can be corrected over time. One cannot correct the rule of man, which can change while you are trying to look at it.

    • ” The fact that a legal text is old sometimes makes the identification of meaning more difficult, but far from impossible in most cases. For one thing, the meaning of language hasn’t changed that much.”

      Our Constitution IS simple, readable, and understandable.

      Article V, process for amendment, was included so the Constitution can be updated with the times. The fact is, the progressives/communists could, and can, never get a majority of the people to support tyranny. So the progressives invented the ideology of “living Constitution” to amend the Constitution without “the People’s” consent.

      The average person is confused because they have been indoctrinated to believe our Constitution can only be understood by an “elite”, an “expert”, a lawyer. An outright lie created by the progressives/communists/Fabian socialists.

      Our founders purposely wrote the Constitution in understandable language.

  1. Barnett has it exactly right when he says:

    The reason for claiming that the Constitution alone among legal texts is inaccessible to lawyers is not that its original communicative content is unclear, but that some of its original meaning is all too clear and some people don’t like it, so it must be gotten rid of somehow. The Progressives were very candid about this, referring to the “Horse-and-Buggy” Constitution. They knew what it meant, but it got in their way. So, for better or worse, the written opinions of long dead New Deal and Warren Court Justices have replaced important parts of the the written text of the Constitution.

    But isn’t that always the case with tyrants?

    • It appears now that;

      ALL “of its original meaning is all too clear and some people don’t like it, so it must be gotten rid of somehow. “

  2. In a Constitution based on Napoleonic principles, there is no concept of precedent, so every case brought before the court is decided based on the pertinent language in the original document. As evidenced by the state of Louisiana, the rest of the system is, at best, not the savior of the state.
    I wonder if that was ever a point of contention when our Constitution was debated?

    • Comparing with our Constitution is the “first check”.

      If the issue is not contained there, then you go to case law.

      Those who go to case law first, and never compare with the constitution are at best,not properly analyzing or oftentimes, are purposely misleading.

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