Balkinization: Originalism, Objectivity and History

Relativism personified in less than 1000 words.

# posted by

mjh21 : 11:46 AM

No originalists seem any longer to rely upon original intent of framers/founders. Their focus is upon original meaning and orginal understanding. And original understanding is to be measured by the public at the time of framing/adoption. But the "public" is not defined. Should the "public" be limited to white males who could vote? In any event, do all members of this "public" have to understand the same way? Might there not be regional differences as to the "public's" original understanding? If so, doesn't original understanding present many of the same problems presented by original intent? How much reading of the past must we in the present have to do to determine original meaning/understanding? Frankly, I don't have the time and perhaps neither do others who describe themselves as originalists. All of us are selective in whom and what we rely upon in trying to understand the Constitution.

# posted by

Shag from Brookline : 11:51 AM

Translation:

No one can "really" know anything, all things are an enigma, we might as well just make up the constitution as we go along because there is no view is any less or more illegitimate that originalism.

# posted by

mjh21 : 12:32 PM

I have posted on some related issues here: http://expost.blogspot.com/2005/06/and-speaking-of-leiter-and-originalism.html

It seems to me that the Rortyan fun with objectivity as an impossible dream in philosophy can serve some useful functions, but ultimately cannot do away with the fact that there is still a real world and we must, imperfectly as will, attempt to manage more smoothly our interaction with it. The recalcitrance of reality, the recalcitrance of texts, is a factor insufficiently attended to by all versions of skepticism, from the Pre-Socratics to Richard Rorty. We can all still look at the due process clause and understand why Henry Monaghan refers to our current "substantive due process" jurisprudence as "due substance." We can see why the latter words are more accurate, and we can see that they are not at all the same as what is in the constitution.

We do not need outre theories of observation to see the difference, and such theorizing also cannot erase the difference. Claims that such obvious departures from textual meaning as substantive due process jurisprudence are somehow supported by the latest skeptical trends in allied disciplines (philosophy, literary theory, historiography, etc.) are simply frivolous on their surface.

These claims are always made by articulate people who use language confidently even as they try to mystify about just how unreliable language is (like the written words of laws) as a bearer of discernible meaning over time. Yet they confidently rely upon elderly English translations of even more antique texts by Kant (and much further back as well) to get the whole project going. And these historians, whatever their rightful humility about the choices the make, do they take themselves to be writing fiction, advocacy, or history? Can they tell a difference?

# posted by

T. More : 1:52 PM

And just to be clear, the reason I think that my own post is partially responsive to Prof. Graber's is this: even if it is true that my judgments about past events will in some ways inevitably be affected by my views of the present, I can still tell a difference in activities (hence my question at the end about the historians' self-understandings).

I can also, despite the inevitability of some residual or unconscious bias, look at some old laws and see that, despite my wishes, they just don't mean what I wish they meant. Nothing in the historians' (or anyone else's) general skepticism would permit me to abandon, at that moment, the original meaning for my own current preference. That is the superiority of originalism over Dworkinian approaches.

In a nutshell, anytime I could see a difference between the originalist result (namely something repugnant to me) and the Dworkinian result (which will necessarily comport with my best moral judgment), I should, for rule of law reasons AND the reasons of skepticism adduced by Prof. Graber, choose the originalist interpretation.

That is, if it is true that my own biases will affect my reading of history, then when I think Madison did something I don't like, I guess I should trust that judgement. Thus, a fortiori, originalism is better since it will either be (a) indistinguishable in practice from Dworkin's approach or (b) be a reliable indicator, since my skepticism about things suggests I will find answers I want rather than answers I don't.

# posted by

T. More : 2:11 PM