Balkinization  

Tuesday, August 14, 2007

Twenty Years of Originalism

Stephen Griffin

Long ago, I read an informative work on the history of philosophy called 100 Years of Philosophy. I have often wondered if a similar work could be written on constitutional theory, say, 50 Years of Constitutional Theory. That would take us back to the dispute over the legitimacy of Brown v. Board of Education when Alexander Bickel presumably began writing his 1962 classic setting forth the “countermajoritarian difficulty” (and a defense of Brown, let’s not forget). Would such a work conclude that constitutional theory has made progress or just changed the subject a dozen times?

We’ve had about twenty years of debate over originalism since the dawn of the “new originalism.” I’m about right on dates. Sometimes this is dated to a 1986 speech by Justice Scalia, other times to his more famous 1988 lecture, “Originalism: The Lesser Evil.” Other times to The Tempting of America, the book Judge Bork started writing after his Supreme Court nomination was defeated in 1987. The new originalism is public meaning originalism, the idea that some of the difficulties with originalism can be avoided by stressing public meaning rather than private intent. Anyway, that’s the originalist storyline. It starts with originalism battling nonoriginalism in the 1980s, but suffering from wounds inflicted in articles by scholars like Paul Brest and H. Jefferson Powell. Advocated most clearly by Justice Scalia, public meaning originalism picks up steam in the 1990s. Scholars start to realize its advantages, it prevails over the “subjective” original intent variant, and nonoriginalism increasingly lies helpless and forlorn.

Today’s originalists still seem attached to the originalism/nonoriginalism distinction. In a recent example of the use of the distinction, constitutional scholar Michael Ramsey made clear that he thought scholars were still divided into originalist and nonoriginalist camps. Ramsey relied on Justice Scalia in contending that nonoriginalism “is united only in agreement that originalism is not the right approach; it would substitute a bewildering array of proposals, yet agrees upon none.”

This is a shame, because about the time originalists discovered public meaning originalism, most of the scholars they call “nonoriginalist” began concluding that the distinction was flawed, barely more helpful than the “interpretivist/noninterpretivist” distinction it replaced. (One point critical legal scholars were dead on target about is legal scholarship’s love of dualisms. When a lawyer presents you with a dualism, you should always start thinking about the alternative being suppressed.) The distinction was criticized effectively by David Hoy, Lawrence Solum, and, I admit, myself. By the late 1990s, most scholars outside the camp originalists had built for themselves had concluded that either “we are all originalists” or the term just wasn’t helpful. Today, scholars like Sotirios Barber and Jim Fleming (in their 2007 book on interpretation) distinguish among forms of originalism, not between originalism and nonoriginalism. The originalism/nonoriginalism distinction is not a helpful way to describe the debate. But it does tend to make originalism look like the status quo – something it is certainly not, at least not the popular variant I call “exclusive originalism,” the idea that originalism is the sole legitimate method of constitutional interpretation.

There’s another way to view the course of the debate in the 1990s, a storyline that moves us away from originalism/nonoriginalism. In this story, at the level of interpretation, scholars pick up on the importance of the pluralistic theory of interpretation pioneered by Philip Bobbitt. Various scholars like Akhil Amar and David Strauss start developing individual methods of interpretation to new levels of sophistication. In addition, scholars became sensitized to the important questions raised by constitutional change outside Article V. Bruce Ackerman and Sandy Levinson were important here. The countermajoritarian difficulty and the traditional debate over judicial restraint (an important ally of originalism) became less important as a practical matter as it was apparent that no justice on the Rehnquist Court was interested in being restrained. The kind of restraint tradition associated with Justice Frankfurter disappeared. (There was another giant unproductive detour in the 1990s that I’ll have to reserve for another time – the debate over “fidelity” to the Constitution. The very use of this term biased the debate toward originalism.) Anyway, in a “non-restraint” world, lots of the traditional reference points for debate in constitutional theory lose their meaning.

Let’s remember the last time a major legal scholar published a book defending nonoriginalism. Any examples in this century? Or in the 1990s? The footnotes I’ve seen in originalist articles citing supposed scholars who represent the opposite “nonoriginalist” camp are pretty thin. I believe in his 1988 lecture, Justice Scalia cited Laurence Tribe as an example. Have a heart! Tribe is clearly a pluralist (check out the 3rd edition of American Constitutional Law), not a true believer in something called “nonoriginalism.” Let’s at least try to adopt the internal point of view toward theories we criticize. We are likely to learn more that way. Once you do this, you’ll see there’s little more substance to “nonoriginalism” than the abandoned “noninterpretivism.” It’s a relic.

Comments:

Professor Griffin: The countermajoritarian difficulty...

Respectfully, what difficulty? The founders were, rightly, as worried about tyranny of the majority (and the fickle, feckless foolishness of the majority!) as they were of monarchy. The focus wasn't on the form of government, it was on finding a form of government which would positively preclude certain wrongs, such as taxation without representation. I have trouble following conversations which accept the premise that majoritarianism is in itself a higher good. (The uselessness of putting Democrat rascals in Congress to replace Repulican rascals there supports this point that majorities are no guarantee of right action and that perhaps the wisdom of the crowds ain't all that wise.)

20 years of originalism would, it seems to me, begin with some observations about the difference between a) originalism wielded on the bench to support a ruling which fit one's political leanings, b) originalism brandished in the ivory tower (which, in turn, will be co-opted by the political process if one is lucky), c) originalism in the streets, which lacks insight but packs a populist punch. Once the various venues in which this rhetoric flies have been sorted, only then, it seems to me, can there be any valuable analysis of distinctions within venues.

My other thought is, why 20 years? What of Professor Balkin's mention, elsewhere, of great liberal originalists of bygone days? Starting the clock where you do seems to play into the narrative you seem to otherwise critique.
 

I don't understand. Isn't it better to use the term "nonoriginalism" just as the negation of originalism? Saying that the original public meaning isn't interpretively binding, but is only one method among many--that's nonoriginalist, isn't it? It seems pretty plain to me that your earlier post, explaining how you want to critique originalism, is a defense of nonorginalism.

"Let’s remember the last time a major legal scholar published a book defending nonoriginalism."

Breyer's book attacks originalism, so I think that counts.

All of that said, I think that defining originalism as opposition to constitutional change is infelicitous, because it is ambiguous between saying (a) nothing about constitutional interpretation ever legitimately changes, on the one hand, and on the other denying that (b) everything about constitutional interpretation might legitimately change. Almost no one but Raoul Berger holds to (a)--see, e.g., Berman's survey--but almost no one holds to (b), either. So almost everyone thinks that some things should stay fixed, but some other things can change. Rather than fussing over a word, or fussing over people's use of a word, we should talk about what's fixed and what's not. I don't really see what the pluralist people think is actually fixed in constitutional law and why. Precedents can override text and history--sometimes. But what is binding and fixed, and why?
 

I would join Chris in his point.

Every book and law review article which opposes the originalist means of interpreting the Constitution can be fairly called "nonoriginalist." The label nonoriginalism does not imply that all those who oppose originalism share the same approach to interpreting the Constitution, but rather the negative proposition that they all oppose originalism.

The fact that nonoriginalists choose not to use that term to describe themselves does not mean that their positions are in fact nonoriginalist. Rather, the fact that so many legal scholars publicly embrace the general concept of (or at least their own personal spin on) original meaning of the text of the Constitution suggests more that originalism has largely won the political debate rather than an actual embrace of originalism. This is similar to Nixon speaking on behalf of conservatives that: "We are all Keynsians now," when in fact we were not.
 

I have trouble following conversations which accept the premise that majoritarianism is in itself a higher good.

JMHO, but I think majority rule is a good thing. It's just not a complete good, and it needs to be modified in ways to guard against tyranny of the majority. Your reference to Congress doesn't really disprove the benefits of majority rule; as Prof. Levinson is so fond of pointing out, Congress is very far from being actually democratic. Again IMO, it's the undemocratic nature of Congress which causes many of the problems people sometimes attribute to "majority rule".

Isn't it better to use the term "nonoriginalism" just as the negation of originalism? Saying that the original public meaning isn't interpretively binding, but is only one method among many--that's nonoriginalist, isn't it?

The point is that there's no reason to privilege "originalism" as the standard from which to measure all other methods of interpretation. It would make just as much sense to say that "pluralism" is the standard and that any other theory (originalism) is merely "non-pluralist". Use of the term "non-originalist" is political spin, not a substantive position.
 

"Use of the term 'non-originalist' is political spin, not a substantive position."

I don't understand. Isn't "non" a perfectly standard English prefix? It's one thing to complain that "originalism" is ill-defined--as I explain above, I think it is, if we use it to mean "opposition to change in constitutional interpretation." But the "non-" seems perfectly clear and neutral. If "living-Constitutionalism" makes sense, then so does "non-living-Constitutionalism." Scalia and others are fine, for instance, with saying they want a dead Constitution.

There's not a good label for the alternative position, but that's just because there isn't any very clear alternative position to label. Bobbittism, or pluralism, is one view, but it's not unambiguously embraced by all critics of originalism, so we need a broader term. If there were lots of critics of Bobbittism, but who didn't specify their own views very clearly, then we might need to use a term like "non-Bobbittism." But using that term wouldn't be giving Bobbitt any sort of unfair political advantage--it would just be reflecting the fact that a lot of people criticize Bobbittism without offering their own views.
 

It is remarkable that legal scholars would spin their wheels so long within their own discipline without seeing what philosophy and linguistics might add to a discussion of interpretation and semantics. Scalia's arguments remind me of a medieval monk examining the head of pin. Wittgenstein said over sixty years ago, "The meaning of a word is its use in language." Any kind of bizzare reverence to lost meaning is kind of cute, but I think scholars have been here before. For example biblical studies have wrestled with the meaning of texts that are 6000 to 2000 years old. Shakespeare wrote 400 years ago and yet we read him.
"We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror."

Quine has important things to say in "Word and Object" and Davidson's has addend even more with his discussion of radical interpretation, radical in the sense that it requires no previous knowledge of the speakers beliefs or meanings and yet arrives at both meaning and belief. Until then, time would be better spent counting angels on pinheads.
 

I don't understand. Isn't "non" a perfectly standard English prefix?

No, it isn't. It's a verbal trick. By referring to something as "non-X", you are setting up X as the standard against which other things must be measured or compared. It's that use of "originalism" as the implicit standard which is objectionable.
 

Mark Field: ...I think majority rule is a good thing. It's just not a complete good, and it needs to be modified in ways to guard against tyranny of the majority...

I think we can agree that any system, monarchy, pure democracy, federal republicanism by land owning white males, any system has potential to create justice and injustice. But we're supposed to be in the process of nursing a system of laws intended to absolutely preclude many types and specific instances of wrong while permitting activities that promote the general welfare. Any flavor of originalism which fits such a system is fine by me. Any flavor of originalism wielded to circumvent such a system is to be disputed, refuted and repudiated. Majority rule itself is a means, not an end; the end is supposed to be consent of the governed. But, as we see from the willing complicity in war crimes by some of our visitors, the governed can consent to tryanny quite easily, and prevention of tyranny is the primal end toward which our institutions aim.

Mark Field: By referring to something as "non-X", you are setting up X as the standard against which other things must be measured or compared.

Tremendously well put. It's beyond "framing," but a matter of initiative, of arriving at the battle field before your enemy and choosing where you would prefer to make your stand. Acceding to such nomenclature choices is a continued failure on the part of liberals/progressives.

Casarojo: Wittgenstein said over sixty years ago...

Doesn't mean it's true, nor even, if true, that it's the only or final truth on the matter. It's a useful view, but arguably it is nothing more.

Casarojo: Scalia's arguments remind me of a medieval monk examining the head of pin.

Me too, and probably for the same reason: the arguments are intended to end conversation, with the power elite's position preserved, rather than to assist in an ongoing evaluation of real world issues to better resolve them. I've argued on another thread that Scalia's "Originalism" is on an intellectual par with "God Said It, the Bible proves it, I Believe It!" and is, arguably, proffered as much for its fit with ingrained patterns of thought in the right wing "base" as it is for any substantive value in argumentation.

Ultimately a theory like "originalism" is moot, as there is no credible way to infer a single intended or perceived meaning from so vague a document drafted and crafted under circumstances of such dispute and contention by as heterogeneous a group as we know "The Framers" to be, don't y'all think? As I've said before, the shifting nature of language and understanding is not a subject about which reasonable people of good faith can disagree.
 

"It is remarkable that legal scholars would spin their wheels so long within their own discipline without seeing what philosophy and linguistics might add to a discussion of interpretation and semantics."

Amen! I don't think Wittgenstein was right, though. The tradition begun by Frege gives a good explanation for how to keep meaning fixed but allow application to change--I think a much better explanation than anything law professors are likely to come up with on their own.
 

"'I don't understand. Isn't "non" a perfectly standard English prefix?' No, it isn't. It's a verbal trick. By referring to something as 'non-X', you are setting up X as the standard against which other things must be measured or compared. It's that use of 'originalism' as the implicit standard which is objectionable."

Could that be right--the very prefix "non" is always an illegitimate trick? Seattle used "non-white" in its attempt to require integrated schools, but I don't think that was any sort of trick.
 

Didn't Justice Breyer just write a pretty comprehensive critique of originalism, Active Liberty?

I realize that there's a lot of people endorsing originalism these days, but the claim that there aren't serious works endorsing something else seems just wrong.
 

Could that be right--the very prefix "non" is always an illegitimate trick?

I'm not saying it always is, just that it can be and in this case is.

As a rough guide, if someone breaks a larger category into 2 smaller ones, one containing a single item (X) and the other containing all the rest, it's probably silly to describe "all the rest" as "non-X". It's much more reasonable to view X as "non-everything else".

Majority rule itself is a means, not an end; the end is supposed to be consent of the governed. But, as we see from the willing complicity in war crimes by some of our visitors, the governed can consent to tryanny quite easily, and prevention of tyranny is the primal end toward which our institutions aim.

There's no doubt that the majority can make very bad decisions in the short run. It's record in the long run is much better. Of course, as Keynes said, in the long run we're all dead.
 

One small point:

@ casarojo (and chris) who said: "It is remarkable that legal scholars would spin their wheels so long within their own discipline without seeing what philosophy and linguistics might add to a discussion of interpretation and semantics."

Um, they did. It was called the 70s (Rawls, etc. fascination) and the 80s (deconstruction/post-structuralists seep in from the English Depts to the law schools; see the Critical Legal Studies movement).

To paraphrase this blog's namesake, the legal academy squeezed out from those disciplines whatever was useful to law and then discarded (which is why there are law *schools* instead of law *departments*)
 

Mark Field said (1:01 PM) --
>>>>>>By referring to something as "non-X", you are setting up X as the standard against which other things must be measured or compared. It's that use of "originalism" as the implicit standard which is objectionable. <<<<<<

What about that term "antidisestablishmentarian"? What is wrong with plain old "establishmentarian"? Maybe the former term was created by those who wanted disestablishmentarianism to be considered to be the standard or norm. LOL

For the following reasons, I think that it is impossible to be a true "originalist " --

(1) The Framers made omissions. For example, the courts had to add a "dormant" commerce clause -- which generally prohibits states from interfering with interstate commerce -- because the Constitution does not have such a clause. Also, the Framers did not foresee the possibility of a civil war over the right of secession.

(2) The Framers could not foresee many new problems and many new technologies. Things like environmental problems and modern means of communication were not even on the radar screen of the Framers.

(3) The Framers did not foresee radical changes in social attitudes. For example, the true originalist position is that Brown v. Board of Education was wrongly decided.

Originalism has led to the distortion and even fabrication of history. For example, the Founders have been portrayed as everything from a bunch of bible-pounding holy rolling fundies to a bunch of godless blasphemous atheists. In one of the worst examples of originalism, Judge John E. Jones III said in a Dickinson College commencement speech that his decision in the Kitzmiller v. Dover intelligent design case was influenced by his notion that the Founders believed that organized religions are not "true" religions.

The Founders were certainly wise in many ways but their views should be taken with a grain of salt.

Originalists are typically dogmatic because originalism is hard to justify.
 

"...the legal academy squeezed out from those disciplines whatever was useful to law..."

I certainly don't think they've fully exploited Frege yet! There's a lot more to philosophy than Rawls and deconstruction. Maybe we've had enough literary theory imported into the law, but not nearly enough analytic philosophy, surely.

"As a rough guide, if someone breaks a larger category into 2 smaller ones, one containing a single item (X) and the other containing all the rest, it's probably silly to describe 'all the rest' as 'non-X'. It's much more reasonable to view X as 'non-everything else'."

Still don't get it. Think about Louisiana. There are Frech speakers and non-French speakers. It's not more reasonable to call the French speakers "non-everything else." We have a term--"French speakers," "originalists"--to cover some of the population, but no good term to cover the rest, other than "non-French speaker" or "non-originalist." I just can't fathom what the problem is with this.
 

Man, anybody who thinks that refering to people who aren't originalists as 'non-originalists' is some kind of sneaky rhetorical tactic probably thinks they're being manipulated when a passerby says, "Nice day!"
 

I would love to know more about how Frege's insights can be applied to constitutional theory . . . (in less than 2 paragraphs)
 

I just can't fathom what the problem is with this.

For someone "Amening" the introduction of linguistics into discussions of law, your inability to comprehend that certain phrases can be differently freighted in different contexts is puzzling.

The prefix "non-" marks the category. Unmarked categories are perceived as more basic, natural, universal, and, ultimately, correct. Marked categories, on the other hand, are perceived as derivative, contrived, and, ultimately, a corruption of the former. Partly, it's an implied causal relationship: Can non-originalism exist in the absence of originalism? The unmarked term is logically prior to the marked term, the former being the support upon which the latter is defined. Now, is it true that all constitutional theories that are non-originalist were formed as responses to originalism? No, of course not, but the implication is that they're somehow lesser theories. Think non-starter or un-American if you need more clearly negative examples.

And that's where the elision lies and the problem exists in discussing things in the terms of "orignalism" vs. "non-originalism": it defines the entire remainder of a set ("constitutional theory") as the opposition of the preferred category ("originalism")while asserting the preferred category's logical priority and superiority.

There's also the addition of the -ism that plays a role here, as that particular suffix carries with it notions of adherence and dogma. We seldom find ourselves talking about "non-capitalism" or "non-liberalism," and if we did, we'd be well aware that we were eliding a large set of different opinions that may or may not include aspects of the unqualified term. Why on earth didn't Gregg Jackson, for instance, title his book Conservative Comebacks to Non-Conservative Lies?

Far better to use unmarked categories: call a liberal a liberal, a public meaning originalist a public meaning originalist, and (while in Louisiana) an anglophone an anglophone.
 

Nicely done, PMS. Thanks.
 

"Nicely done, PMS. Thanks."

You're joking, right? That analysis was so anal the author probably brushes his teeth with Preparation H.

"Non-X" is the conventional way of refering to things which aren't X. It has neither denotation nor connotation beyond that. Peeling away at it, looking for an obscure core meaning is like peeling an onion: There ain't no core to uncover.
 

That analysis was so anal the author probably brushes his teeth with Preparation H.

I think it's much more likely that he uses non-Preparation H. Otherwise known as "toothpaste".
 

IMO whether or not it is appropriate to use the term "non-originalism" depends on the context. When talking about principles of constitutional interpretation in general, i.e., strict constructionism, broad constructionism, etc., then it is not appropriate to use the term; however, when talking about originalism specifically, it is appropriate to use the term.

The terms "white" and "non-white" are often used as general racial classifications even where whites are minorities, because whites have traditionally been majorities.
 

"...how Frege's insights can be applied to constitutional theory..."

Frege's distinction between sense and reference can be used to mark, I think, the distinction between what is properly fixed and what properly changes in constitutional interpretation. The sense expressed by the constitutional language is fixed when that language is adopted, but the referent of that language is not (because it depends on how the world is, and those who adopt a provision can be ignorant, or even mistaken). I call it the Theory of Original Sinn, after Frege's word for sense, Sinn.

Put in the language of later contributions by Carnap, Chalmers, and others, the constitutional language in its historical context expresses a fixed intension--a function from possible worlds to extensions. But the constitutional extension is not fixed, because that's determined by plugging the state of the world into the constitutional intension, and the world can change, or the framers can be wrong or ignorant about it.

For (much) more, see here.
 

But, with all due respect, I don't think you need Frege et al. to show *that.*

Anyhow, and this is a serious question, how does that further the debate? How does employing a relatively obscure philosopher (as defined by someone who does not have an advanced degree in the field) to originalism yield insights (that we didn't already know)? Moreover -- and I only have limited knowledge here -- how does Frege et al.'s work compare or relate to, if at all, de Saussure and Derrida and de Mann (to name drop for you).
 

"I think it's much more likely that he uses non-Preparation H. Otherwise known as "toothpaste"."

But toothpaste is only a tiny subset of "non-Preparation H"; Essentially what we've got is a demand that a movement not refer to it's opponents as it's opponents, but instead exaustively list them. Which is an absurd demand.
 

"But, with all due respect, I don't think you need Frege et al. to show *that.*"

I'm not sure what you mean by "that." I'm using a Fregean distinction to solve the basic problem in constitutional theory--what properly changes in constitutional interpretation and what doesn't. If we could solve that problem easily without him, we wouldn't have threads or longstanding controversies like this one, I don't think.

"Anyhow, and this is a serious question, how does that further the debate?"

Using distinctions that have survived over a hundred years of careful analysis by people who specialize in careful analysis is far more likely to produce good distinctions than using distinctions that we make up on the fly today. So, for instance, Dworkin responding to Scalia makes up a distinction between "expectation originalism" and "semantic originalism." But it's not perfectly clear what those terms mean, because Dworkin made them up just then. Better to use terms like Fregean sense and reference, or Carnapian intension and extension, or Millian connotation and denotation, that have a long philosophical pedigree. Of course, these distinctions are commonsensical, and you could reinvent the wheel yourself. But you're not as likely to do a good job. If analytic philosophy has done a good job thinking carefully about the nature of language, and if constitutional interpretation requires a good understanding of the nature of language, it's simply foolish to think that you can do just as good a job solving the problems of constitutional interpretation without using the services of analytic philosophers.

"How does employing a relatively obscure philosopher (as defined by someone who does not have an advanced degree in the field) to originalism yield insights (that we didn't already know)?"

Frege might not be well-known to non-philosophers--I'm certainly doing my best to change that--but he's a giant. No one with even a nodding acquaintance with the philosophy of language will gainsay his enormous importance in the field.

"how does Frege et al.'s work compare or relate to, if at all, de Saussure and Derrida and de Mann (to name drop for you)."

Of these, I've only read the original of Derrida, but I take it that Frege differs from them chiefly in the fact that his work is readily comprehensible and has stood up to extended criticism from a great number of very, very careful people. Derrida might have some important things to say, but he wasn't nearly as devoted to careful, clear thought as analytic philosophers of language have been.
 

But toothpaste is only a tiny subset of "non-Preparation H"

And "originalism" is only a tiny subset of all interpretative theories. It makes no sense to treat that tiny subset as the norm against which all others are measured. It's as if we started referring to Bush and Cheney as "non-Democrats".
 

Mark Field said,
>>>>> And "originalism" is only a tiny subset of all interpretative theories. It makes no sense to treat that tiny subset as the norm against which all others are measured. It's as if we started referring to Bush and Cheney as "non-Democrats". <<<<<<

I propose that we follow the example of "antidisestablishmentarianism" -- let's call originalism "antinonoriginalism." LOL

Originalists are the snootiest interpreters of the Constitution. Non-originalists are willing to consider the opinions of the Founders, but originalists are not willing to consider the opinions of non-Founders.
 

You're being stubbornly silly here, Mark. The reason it makes no sense to refer to Bush and Cheney as "non-Democrats", (Though it would be accurate.) is that we can just as briefly refer to them as "Republicans", conveying a bit more information in no more words.

But if you have a class of people whose only unifying trait is that they are NOT members of a specific class, (Such as originalists.) then it is sheer madness to refer to the class by listing all the things they are, rather than briefly conveying the exact same information by noting what they aren't.

If, for instance, you had a collection of Republicans, Greens, Reform party members, Libertarians, LaRoucheites, and what have you, every shade of politics EXCEPT Democrats,, the appropriate label would be "non-Democrats".

It's senseless to insist that this concise and quite conventional terminology not be used in the case of originalists and people who aren't originalists, unless you're trying to use some fictional connotation as an excuse to pull off a case of Newspeak, attacking an idea by barring use of the terms used to describe it.

Which is exactly what appears to be going on here. Some people are trying to attack originalism by stripping the word of meaning by insisting that it include things it is not, while others are just trying to prevent anyone from using the word, period. In both cases it's an effort to win an argument by manipulating the available vocabulary.
 

You're being stubbornly silly here, Mark.

I think we've reached the "are too, are not" stage here. I'm not denying the logic of your point. I'm merely pointing out that, in some contexts, there's an attempt to privilege a given viewpoint by terminology. I think the examples given by me and by PMS are pretty clear.
 

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