"As many of you know, I regard myself as both an originalist and a living constitutionalist."

This seems to answer a question I have posed to JB in earlier comments. So JB sits atop the constitutional fence with his "mug" (originalist) on one side and his "wamp" (living constitutionalist) on the other. Perhaps a hermeneutical overlay might be appropriate for the this "Mugwamp" version of living-originalism.
 

Professor Balkin:

Living constitutionalism is primarily a theory about what makes the process that produces changing interpretations of the Constitution legitimate.

It appears to me that your views of both living constitutionalism and originalism are designed to legitimatize decisions which would otherwise be illegitimate under what most theorists consider originalism.

A theory of "originalism" that abandons the original understanding of the text, expands the current meaning of the text to principles broad enough to encompass nearly anything (such as a 14th Amendment right to kill one's children) and allows interpretations of those principles to change significantly over time cannot fairly be called originalism, which requires a fidelity to a meaning fixed at the time of the ratification of a constitutional provision.

While one can fairly argue over the best means to determine the meaning fixed at the time of the ratification, originalism requires a fixed original meaning if the term originalism is to have any meaning at all.
 

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.
 

Your use of the phrase "vector sum of political forces" reminded me of my favorite analogy for the restraining (you called them "supermajoritarian") features of our system. I think of them as slosh baffles that prevent hysterical crowds from tramping individuals.
 

How about "Original Sin Originalism" along the lines of Genesis to explain away the intent, meaning, understanding, expectations, etc, of the Constitution? That would be simply divine.
 

Professor Balkin:

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.

Which is?
 

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.

Which is?

Original intent?
 

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.

Which is?

Bart, let me give you some idea of where Professor Balkin is coming from. I first encountered him long before this blog, when I read "The Crystalline Structure of Legal Thought" in law school about a decade and a half ago. The man has been seriously researching legal theory and producing peer-reviewed scholarship in major law journals for many, many years.

You might, Bart, at some point admit that he might know a little more about what originalism does and doesn't mean, and what it's theorists do and don't claim, than you do. It isn't like you are publishing in the law reviews. (As someone who, in addition to his legal work, has published a few articles in major law reviews, I can tell you that it requires a rigor that you do not bring to this issue when you talk about originalism in the same sorts of simplistic terminology ("interpreting the Constitution as written instead of inventing new rights", "14th Amendment right to kill one's children") that Rush Limbaugh and Sean Hannity might use.

Bart, Professor Balkin has a lot to tell you about originalism. And if you don't buy his arguments, you can look at the work of conservative scholars who also treat the subject seriously rather than using "living constitutionalism" as an epithet for whatever results they don't like.

I would suggest, however, that you not opine beyond your expertise, that you not go beyond your remit. You are badly overmatched when taking on someone who has been around the scholarly block as many times as Professor Balkin has on this issue.
 

dilan:

The fact that Professor Balkin and I may disagree is neither here nor there.

I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

Professor Balkin claimed that originalism actually has a quite different definition without providing that definition.

I am simply asking for the contrary definition.

No matter how learned my correspondent, I do not accept bare assertions as undisputed fact.
 

No matter how learned my correspondent, I do not accept bare assertions as undisputed fact.

Why, I have that very same tendency. In fact, when that correspondent miscites actual law, I'm even a bit more sceptical and ask for substantiation (and corrections as appropriate). However, not everyone here bothers to back up their assertions, even when asked repeatedly for such. In fact, a few of the more impolite ones just go on and reassert the same stuff in the next post down the line again without substantiation....

OBTW, there's a link in Prof. Balkin's point under that "originalist" blue clicky...

(documentation and substantiation of my above assertions available on request, of course)

Cheers,
 

I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

Bart, is that the common definition as put forth by Robert Bork? The common definition as put forth by Antonin Scalia? The common definition as put forth by Akhil Reed Amar? The common definition as put forth by Hugo Black? By critics like John Hart Ely or Paul Brest? Randy Barnett? Could you summarize what the differences are between those various authors' conceptions of originalism?

If I may paraphrase a great legal thinker, originalism isn't a brooding omnipresence in the sky. It is a category that includes various interpretative metrics. Indeed, some of the interpretative metrics included in originalism definitely do not believe that the meaning of the Constitution is fixed at the origin of the document. Not even Scalia, for instance, believes that. (See his majority opinion on thermal imaging.) Nor does Bork. (See his discussion of libel law in "The Tempting of America" and his wiretapping decision on the DC Circuit.)

What you are offering, Bart, is a radio talk show definition of originalism, used by right-wing hacks to claim that liberal theories of jurisprudence are unprincipled when compared to conservative theories of jurisprudence. You show no signs of having actually engaged the deep jurisprudential debates about text and meaning. Ever heard of H.L.A. Hart? "No vehicles in the park"? Those of us who have studied some of this stuff know that it is a fascinating and complex subject matter. Real interpretation is HARD, and applying netural principles rather than choosing metrics that get the results one wants is VERY HARD.

I do not profess to be an expert in jurisprudential interpretative theory; I simply know enough about it to know that the things you are saying are the words of a person who knows the Republican talking points on the issue but has not a clue about the actual academic scholarship on originalism, let alone the serious problems in interpreting legal texts that originalism does not always help to solve.

Trust me, Bart, you are way out of your league here. I know it is fashionable among conservatives to think of academics as mindless left-wing ideologues, but in fact to be a top flight published legal academic requires a sharp and precise mind, and the people who debate originalism in the academy have forgotten more about these issues than you and I combined are ever going to know.

You really should quit while you are behind, Bart. Or better yet, stop making a fool of yourself, subject your ideas to more rigorous scrutiny and research, test your hypotheses, and see if you can get a jurisprudential paper into a major law school's law review. You will find that you need to go a little deeper than facile explanations about Scalia's alleged principles and theories of originalism as mandating a Constitution of unchanged meaning.
 

Dilan:

If I may paraphrase a great legal thinker, originalism isn't a brooding omnipresence in the sky. It is a category that includes various interpretative metrics. Indeed, some of the interpretative metrics included in originalism definitely do not believe that the meaning of the Constitution is fixed at the origin of the document. Not even Scalia, for instance, believes that. (See his majority opinion on thermal imaging.) Nor does Bork. (See his discussion of libel law in "The Tempting of America" and his wiretapping decision on the DC Circuit.)

The Harvard Journal of Law and Public Policy (the Federalist Society legal mag) published one issue on "originalism" by various people; I recommended that "Bart" read it a long time ago. As the various authors in that issue pointed out, there's "original meaning", "original intent", "intent of the original founders/authors/ratifiers/judges/experts if they were presented with the current controversy", "understanding of the 'founders'", "understanding of the ratifiers", "understanding of the people", etc.. Then there's levels of "understanding" and "interpretation"; do we want to honour the specifics at the expense of the whole, or are the principles meant (or intended) to inform the specifics?

So many combinations to pick from....

It is a disservice to legal scholarship to pretend that the answers are straight-forward; matter of fact, those that make their profession at law should be thankful; were it straight-forward, and were the laws "obvious", there would be no need for lawyers, judges, and law profs, and a JavaBean macro would do all our adjudication.

Cheers,
 

I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

On a perhaps related (or unrelated, depending on how you look at the 'science' of jurisprudence) topic, one of the more compelling and curious proofs of the 20th century in mathematics was Kurt Gödel's Incompleteness Theorem: It states (roughly) that for any sufficiently powerful formal system of logic, there are statements that can be made that are true within that system but which cannot be proven to be true within that system. Translated roughly from "Bart"'s language, assuming that a legal system is akin to some formal logic system, there may be things that are "fixed" (that is, that are true), but which just aren't knowable (they either can't be found, or they can't be shown to be true) without recourse to external entities. So much for "Bart"'s 'idealism'....

But law is not math ... alas.

Cheers,
 

dilan said...

BD: I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

Bart, is that the common definition as put forth by Robert Bork? The common definition as put forth by Antonin Scalia? The common definition as put forth by Akhil Reed Amar? The common definition as put forth by Hugo Black? By critics like John Hart Ely or Paul Brest? Randy Barnett? Could you summarize what the differences are between those various authors' conceptions of originalism?

Yes, I provided the basic principle which unites those who practice originalism. Practitioners employ differing means to get to that end - textualism, original understanding and original intent to name three. However, the sought after end of a knowable meaning fixed at the time of the origin of the Constitution is generally the same among Originalists.

This is not even a close question. Consult any legal or general dictionary or encyclopedia you choose and you will find a variation of the general end of originalism which I posted.

What you are offering, Bart, is a radio talk show definition of originalism, used by right-wing hacks to claim that liberal theories of jurisprudence are unprincipled when compared to conservative theories of jurisprudence.

Unless one assumes that the Constitution is a conservative document and fidelity to the Constitution is conservatism, I do not see how one can contend that originalism is either conservative or liberal.

Real interpretation is HARD, and applying netural principles rather than choosing metrics that get the results one wants is VERY HARD.

No one said that Originalism was easy. Living constitutionalism is far easier because it is not based on neutral principles. Indeed, I suspect that the ease of living constitutionalism just as much as ideology is why judges use it.
 

one of the more compelling and curious proofs of the 20th century in mathematics was Kurt Gödel's Incompleteness Theorem: It states (roughly) that for any sufficiently powerful formal system of logic, there are statements that can be made that are true within that system but which cannot be proven to be true within that system.

Actually, you can prove such statements true, but only at the cost of contradictions in the formal system. The system can be complete -- that is, all true statements can be proved -- or it can be consistent -- no logical contradictions -- but it can't be both.

Of course, calling conservative theories of originalism "formal systems" is far too complimentary. They're muddled thinking, useful for talk radio but not much else.
 

Consult any legal or general dictionary or encyclopedia you choose and you will find a variation of the general end of originalism which I posted.

Why would you assume that a general dictionary or encyclopedia would contain an authoritative definition of a contested jurisprudential theory?

I can tell you that much of what we call originalism-- including, notably, what Scalia and Bork advocate-- does not fit into the definition that you gave earlier in this thread. Both Scalia and Bork believe that the meaning of texts can change over time. You should consult the sources I cited for the relevant discussions.

Again, just to come back to the broader point, you are arguing judicial philosophy on the most simplistic levels, and purporting to challenge a law professor who is an expert and who can describe even subtle differences in originalist approaches. You can't come to this argument with Rush Limbaugh talking points about one side following the law as written and the other side not.

Oh, and one more thing, living constitutionalism can be very hard to do too. You might want to read Breyer's book Active Liberty or Laurence Tribe's constitutional law treatise to get some idea of this.
 

@ Mark Field:

[Arne]: one of the more compelling and curious proofs of the 20th century in mathematics was Kurt Gödel's Incompleteness Theorem: It states (roughly) that for any sufficiently powerful formal system of logic, there are statements that can be made that are true within that system but which cannot be proven to be true within that system.

Actually, you can prove such statements true, but only at the cost of contradictions in the formal system. The system can be complete -- that is, all true statements can be proved -- or it can be consistent -- no logical contradictions -- but it can't be both.

Technically, what you say is true: There is a choice between a system that has unprovable but true statements and an inconsistent system. But in practise, this is not a real choice, as any inconsistent system is essentially useless; once you have any inconsistent statements (which are both true) within the system, it's then pretty trivial to prove any statement you desire as true (although perhaps that feature might come in handy in a formal legal system....)

Of course, calling conservative theories of originalism "formal systems" is far too complimentary. They're muddled thinking, useful for talk radio but not much else.

But "Bart" is pretending that they are so (as have others as well, for their own rhetorical purposes). It's a winning argument to say: "There is a true answer that can be divined ... and I, of course, have divined it, so I can't be wrong ... or even gainsaid. End of argument."

Cheers,
 

Technically, what you say is true: There is a choice between a system that has unprovable but true statements and an inconsistent system. But in practise, this is not a real choice, as any inconsistent system is essentially useless; once you have any inconsistent statements (which are both true) within the system, it's then pretty trivial to prove any statement you desire as true (although perhaps that feature might come in handy in a formal legal system....)

And my overly elliptical point was that this pretty much describes conservative forms of originalism.
 

Mark Field:

[Arne]: ... once you have any inconsistent statements (which are both true) within the system ...

And my overly elliptical point was that this pretty much describes conservative forms of originalism.

I don't think it was overly elliptical; that approach seems to describe current foreign policy, at the very least: "Violence is up, we're winning; violence is down, we're winning...."

Cheers,
 

The late Justice William J. Brennan Jnr characterised "Originalism" thus:

“In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage point we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.
All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant—that of the drafters, the congressional disputants, or the ratifiers in the states?—or even whether the idea of original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive."

Other senior common law judges have been even less flattering to the proponents of "Originalism". In his Sir Anthony Mason Honorary Lecture, presented at the Law School, The University of Melbourne, 9th September 1999, entitled "Constitutional Interpretation and Original Intent: A Form of Ancestor Worship", (later published in the Melbourne University Law Review [2000] MULR 1, The Hon Mr Justice Michael Kirby recounted that at a conference in Auckland (New Zealand) on constitutional interpretation, there had been a debate between Scalia J and Binnie J of the Supreme Court of Canada. "It was in the context of defending the Canadian approach to that task", said Mr Justice Kirby "that Binnie J let slip the opinion (which he suggested was held by some Canadian judges) that the approach of their counterparts in the United States could only be explained by appreciating that Americans were engaged in a ritual of ancestor worship".

"Originalism" is a heretical method of interpretation contrary to the collon law tradition latched upon by the American extreme right so as to provide cover for the evisceration of the constitutionally guaranteed rights which US citizens ought to enjoy".