Thursday, August 16, 2007
Ed Whelan Joins In
Over at NRO, Ed Whelan has offered a series of posts commenting on my exchange with Matthew Franck. (Hat tip once again to Jonathan Adler over at the Volokh Conspiracy.) Ed makes three key points, each of which is ultimately about the same thing-- he wants to restrain judges and leave decisions to the political process. As I explained in my exchange with Matthew Franck, this is all very well and good, but it is in some sense orthogonal to the debate over originalism. In addition, Ed's version of originalism has many of the problems I identified in my original articles.
If the authors of the Constitution wanted us to rely on THEIR "intentions and expectations", they would not have destroyed all minutes and records of the Constitutional convention. that they did so, even though they were all meticulous recordkeepers and administrators, knowing full well the importance and significance of such minutes, indicates that they did so entirely because they wanted to create a lasting and flexible document.
Lilorphant: that's a joke, right? If not, you might want to look at http://memory.loc.gov/ammem/amlaw/lwfr.html ...
he wants to restrain judges and leave decisions to the political process.
Why do I get the impression that you think this is a bad thing?
It's pretty easy to see what is going on here. Conservatives have endorsed judicial restraint since the 1960's (in response to Warren) and originalism since the 1980's (when Bork and Scalia came to the forefront. They are two different theories, but they converge because conservatives assert that originalism is a kind of constraint against judges throwing in their own politics and issuing activist decision.
That's true enough as far as it goes, but the problem is that the conservatives who repeat these slogans over and over again don't seem to realize that in order for originalism, or anything else, to REALLY work as a constraint, it either has to be followed EVERY time or there must be some other principle that is ALSO consistently applied that limits its effect.
But in fact, that's not how any important conservative judges are acting. They pick and choose when to apply their originalism and when to respect stare decisis, and not only do they not apply originalism when they don't like the result, but they don't even mention it (see Adarand, for instance).
I think he / she was referring to the long period after ratification where little was in fact known of its secret deliberations, and nothing official was published about them. In fact, the variety of versions of the deliberations that began to appear thereafter tended to confuse rather than clarify the situation.
As you noted, in 1911, all available records that had been written by the Convention participants were gathered together by Max Farrand and published in three volumes as The Records of the Federal Convention of 1787. A Revised Edition by Farrand, published in 1937, incorporated in a fourth volume material that had come to light after the first printing. You may be interested to know that A Supplement to Farrand’s authoritative source is now available, edited by James Hutson; this volume includes documentary material discovered since the appearance of the 1937 edition.
Charles: well, that might well have been what Lilorphant intended to communicate with his words. But I think a fair interpretation of the text will show that only the less charitable reading is compatible with the public meaning of the comment--note the use of "destroyed" rather than "hidden", for example.
Thanks, folks, I'll be here all week.
(Sorry, I couldn't resist.)
Yes - very funny (although perhaps lilorphant was using "destroyed" evidence as Thomas Jefferson thought he did re: Sally Hemings ; )
I also learned something new today:
Prospects have been raised of further DNA testing by possibly exhuming the body of William Hemings, Madison Hemings's son. Since only the paternal line of Eston was tested through DNA, further testing of William Hennings in comparison to the Jefferson and Carr DNA could reveal whether a Jefferson fathered more than one of Hemings's children or whether Jefferson's grandchildren were correct that the Carrs fathered some of the Hemings children. William Hemings is buried in Leavenworth National Cemetery in Leavenworth, Kansas. However, the Hemings family has not agreed to test the body of William Hemings for a DNA match.
A DNA test on William Hemings could reveal any of three things:
(1) No match at all -- Madison Hemings's claim to be Thomas Jefferson's son would be presumed invalid, although other siblings could still have been Jefferson's or another Jefferson relative's,
(2) William Hemings could have the Y chromosome of the Carr descendants, thus proving a match with the Jefferson grandchildren's assertions that at one or the other of the Carrs was involved with Hemings, or
(3) the test could repeat the finding of William's uncle Eston's descendants' test, proving that Madison, like Eston, was a descendant of someone from the Jefferson paternal line.
Testing of William Hemings is the best possible hope for learning more through DNA, because Jefferson's acknowledged descendants are through his daughters and thus did not inherit his Y chromosome; even exhumation of Jefferson's body would only prove that he was actually a Jefferson, and not illegitimate, and would say nothing of any children that he may have fathered.
Jack Balkin said,
>>>>>> Ed argues that the distinction I draw between original meaning and original expectations is a false dichotomy. <<<<<<<
I don't get it. What is the difference between "original meaning" and "original expectations"? Is this saying that at the time of the adoption of the Constitution, the Constitution meant different things to the framers and the general public?
Also, are the Founders really so special as to justify focusing exclusively on their thoughts while ignoring the thoughts of all other people of all times and all places?
I am fed up to here with originalism -- it has led to the distortion and fabrication of history. A particularly egregious example of originalism was in the infamous Dickinson College commencement speech of Judge John E. Jones III, where he said that his decision in the Kitzmiller v. Dover intelligent design case was influenced by his notion that Christianity -- and, by extension, all organized religions -- are not "true" religions:
. . . .we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry."* At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."*
As I hope that you can see, these precepts and beliefs, grounded in my liberal arts education, guide me each day as a federal trial judge.
*Quotations from The Founding Fathers and the Place of Religion in America by Frank Lambert (Princeton University Press, 2003).
Thanks for your support, Charles. You wouldn't believe how many people have told me that I misinterpreted what Judge Jones said -- they just can't accept the fact that their hero would say something so stupid. He was clearly biased against the Dover defendants.
One more thing --
Though Judge Jones said that his notion about the "true religion" of the Founders was learned in his undergraduate days, he was actually quoting from a book that was published long after he graduated.
Just because ONE Judge misapplies Originalism, does not logically equate to "Originalism sucks". For instance, Adolf Hitler claimed to be a Christian. Does all of Christianty therefore "suck"?
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