Wednesday, November 07, 2007
Response to David Strauss on Originalism-- Round Two
Cross posted on University of Chicago Law Faculty Blog
Well I always hesitate to tread in these threads not being a lawyer or having much patience for legal theology, but...
1) If the British Parliament wanted to enact a Constitution the way our Congress did, they could do so. Hence I don't see any reason to think there is any big difference in theory. As a matter of history our system is cleary the product of a line of descent that runs Reformation - Dutch Revolt - English Civil War - Glorious Revolution - American Revolution.
2) This matter of "faith" is really a discussion of human reason in the most general sense.
Human intelligence is fundamentally linguistic and cooperative: it literally could not exist if there was only one human being, for the simple reason there would be no one to talk to and nothing to discuss. The Scientific method is a good illustration of how the interaction between individuals and the community is intrinsic to the whole enterprise.
And it's not a roulette game where all results are equal. Aluminum is useful for making airplanes, while lead is useful as ballast in the keel of a boat, airplanes are supposed to fly, and boats are not supposed to capsize. Something I often wonder in this context is: doesn't anyone ever actually READ the preamble to the Constitution?
It's not just flowery boiler-plate: it's a mission statement.
I don't think you are fair in your representation of David's argument when you state
"What is the nature of David's distinction between "legal argument" on the one hand, and "rhetoric" on the the other? I had thought that all of the traditional modalities of legal argument were simultaneously rhetorical forms and valid modes of legal argument."
I think what David means is that the invocation of originalism is not categorically distinct and certainly not categorically superior than other Constitutional arguments and hence there is no reason to prefer appeals to orginalism over other types of constitutional arguments.
Thus saying one is invoking originalism is not, by itself, a legal argument; rather, such a statement is a rhetorical move and not a deductive proof that the constitution means X and not Y.
I don't see how anyone can call the Founders all-wise and all-knowing when they did not even write the Constitution in a way that would have prevented the Civil War. If the Founders did not foresee the possibility of secession and civil war, then how could they have foreseen such things as today's environmental problems and issues of censorship and privacy on the Internet?Post a Comment
One of the worst cases of originalism was where Judge John E. Jones III showed extreme prejudice against the Kitzmiller v. Dover defendants by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders believed that organized religions are not "true" religions. He said,
. . . .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."
BTW, what happened to part 3 of the "Fairness Doctrine"?