More on Originalism

As I mentioned in a comment in one of Mr. Hanley’s threads, I hope to complete an essay one of these days — shameless working title, Two Dogmas of Originalism — in which I will argue that textualism and intentionalism, the two main flavors of originalism, are both predicated on serious misunderstandings about the nature and use of ordinary language and its first cousin, legal language. As doing so requires some foundational work in philosophy of language as well as a dollop of philosophy of law, don’t hold your breath waiting for me to put in the effort required. Hope springs eternal, but pragmatists hedge their bets.

In the meantime, however, I’m going to take the liberty of linking to and thus resurrecting three posts from the now defunct blog Left2Right by my cyber-friend and erstwhile political sparring partner on that blog, Don Herzog. Usual disclaimers about me not agreeing with everything therein, about Mr. Herzog perhaps not even agreeing, himself, with everything in his own five year old blog posts — gawd knows that’s often true in my case — etc., etc. Think of them, as it were, as snapshots from cyber-space and cyber-time.

Nonetheless, Mr. Herzog clearly articulates several of the fundamental and, I believe, insurmountable problems with originalist theories of judicial interpretation. (The truly industrious will even find a familiar name or two in the comments sections.) Herewith, therefore, Originalism in Constitutional Law: Part One, Part Two and Part Three.

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26 Responses to More on Originalism

  1. James Hanley says:

    I appreciate your prior comment about textualism and originalism–it made Scalia rather more coherent for me.

  2. Tim Kowal says:

    I look forward to reading it.

  3. tom van dyke says:

    I enjoyed Mr. Herzog’s posts, DA, although I can’t make my way to his conclusions.

    The Constitution was drawn, “creating a more perfect union” than the Articles of Confederation, to create a true national [“general” as they sometimes called it] government with clearly defined limits.

    The idea was to draw a line—this far and no farther. Originalism can start there, as limits on the government, not carte blanche for redesigning the nation in 100 years as the concepts behind words and terms change.

    Certainly things that weren’t considered cruel in 1787 are considered cruel in 2010. [Unusual, hard to say. “Cruel” has been used to declare things unconstitutional that aren’t all that unusual, a textual problem there.]

    The originalist must say “cruel and unusual” punishment means you can’t bring back drawing-and-quartering, a very good idea, and probably more in keeping with the understanding of the 8th as ratified. Nothing more cruel and unusual than at the time of ratification is permissible, a door that can swing only one way, to limit the “creativity” of the general government, not to encourage it. To my mind, the electric chair when it first came into use was certainly unusual, and a case could have been made it was more painful, and therefore cruel, than hanging or firing squad. There certainly is a place for judges making normative judgments. The question is who decides what’s normative?

    One of the favorite tactics in these discussions is to attack Scalia for his inconsistencies. But this adds nothing to the discussion of the principles. He was at Hastings the other day

    http://legalpad.typepad.com/my_weblog/2010/09/scalia-working.html

    One of the livelier themes was Scalia’s defense of the textualist approach to the Constitution. The approach isn’t perfect, he acknowledged. But he added it offers easy answers on issues as big as the death penalty and abortion. “I don’t even have to read the briefs, for Pete’s sake,” he said. “If you are an evolutionist, you don’t have any answers. Every day’s a new day for the evolutionists … Originalism isn’t perfect, but it’s so much more perfect than evolutionism.”

    “You do not need the Constitution to reflect the current society,” he said later. If the current society wants to change something “… all you need is a legislature and a ballot box.”

    Oh, the hounds of hell might descend for even mentioning St. Nino, but gotta throw them some red meat now and then.

    Thx for the links, DA. I thought Mr. Herzog outlined the issues very well, and clarity is the most important thing. Mileage will vary.

  4. Charles Wolverton says:

    DAR:

    Please, please don’t call it “intentionalism”. We already have intent, intention, intentionality, and intension – confusion enough! How ’bout something unambiguous, like “meantalism”?

  5. D.A. Ridgely says:

    The idea was to draw a line—this far and no farther. Originalism can start there, as limits on the government, not carte blanche for redesigning the nation in 100 years as the concepts behind words and terms change.

    Oh come now, Mr. van Dyke, no one is arguing for judicial carte blanche, so why even worry about it? And I’m not criticizing Scalia (at least at this point), so let’s not get bogged down in his battles, either.

    But while it’s all well and good to say “Oh, we must draw a line here somehow,” that’s really of no use unless you get into the weeds and explain just how that line will be drawn. And once you do that, you open your position to the very weaknesses Mr. Herzog articulated.

    Look, I don’t think there’s anyone on this blog who is “pro judicial activism,” whatever the hell that’s supposed to mean. I’d even suspect we’d all gladly endorse a theory of judicial and Constitutional interpretation that, on the one hand, made abuses of judicial power much more difficult but, on the other, permitted the judiciary the latitude it needs to do its legitimate job. And so, like Mr. Herzog (who is a liberal, but that’s largely irrelevant here because I most certainly am not), I have to say the problem with originalism isn’t its goals, per se, but the fact that it doesn’t work. Or, conversely, it doesn’t work except by the smoke and mirrors of sneaking normative value judgments into the supposedly “objective” hunt for the meaning of terms, sentences and such which were in dispute even when they were enacted.

    Now, if you can answer those concerns with more than “originalism is better than nothing,” I’m ready and willing to listen.

  6. D.A. Ridgely says:

    Sorry, Charles, but as far as I know that’s the terminology as it is used in legal theory circles. As you might suspect, few in such circles read much philosophy of language or linguistic philosophy or even linguistics (and vice versa), so I’m afraid you’ll just have to shift gears and say to yourself “Oh, yes, that’s how those damned lawyers use the word.”

  7. tom van dyke says:

    I’m sorry, DAR, my attempt at a proper brevity for a comments section often leaves my meaning misunderstood, since I aim for fresh content and not a rereading of the prevailing script.

    Neither did I mean to assign to you any particular POV as if you were reading from the now-familiar script on the other side of the um…culture war. I just wanted to head off those who do or at least let them know it’s easy to see them coming.

    Herzog’s essays were a fresh bite on the topic, and I wanted to express my appreciation. they gave me a fresh bite as well.

    My position has been that where the Constitution is silent, it is silent, and in his best moments, that’s what Scalia is saying. I have another account from the CA legal papers, of “undue burden” in Casey: he simply says that for the judiciary to answer that question is “not law and I won’t do it.”

    I speak here of “judicial restraint,” and Herzog’s essay made me think further of the philosophy of the Constitution itself, that I believe comports with the ratifiers’ intent: that’s it’s more a stop sign than a green light. The nature of governments and of centralized power is always a green light since they by necessity have a monopoly on force.

    Until there is a law that says a fetus isn’t a human person, or that all sexualities are created equal, or what an “undue burden” vs a “due burden” might be, it’s all opinion. I believe it’s Plato who says politics is the realm of opinion, and for better or for worse, I prefer to leave these matters of moral opinion to politics.

    I argue all the time with Platonists who prefer philosopher-kings. I’m OK with philosophy, but not with philosophers. Martin Heidegger was a fucking Nazi. So much for “philosophers.”

    The fact is that we are indeed elevating the Court to the role of philosopher-kings. I understand the distaste for Scalia, and stipulate for the sake of argument his inconsistencies. But I fear Sonia Sotomayor far more—unless she surprises me—because she has the power to elevate her opinions and sentiments into law, and I think she will. At least Scalia—and more germane here, the principle of “originalism”—recognizes a the need for a certain humility and restraint. Socrates’ “all I know is that I do not know,” and that opinion is not truth.

    The Constitution is silent on what an “undue burden” is. That would be a matter of opinion. As such, Scalia refuses to rule on it, as the law has never spelled it out. He is a jurist, not a philosopher-king. I believe this is consistent with the Constitution as ratified by we the people or the states, as the case may be.

    As for linguistics and the Constitution, I look forward to your explication. I do not think the concepts behind the words—the text—are not all the mystery that linguists might propose they are. Not if they know a bit of history.

    Thx, DA. This has been clarifying. As always, I seek to convince no one of anything. That’s not the purpose of symposia like this.

  8. James Hanley says:

    What neither Justice Scalia nor Mr. Van Dyke want to address is the possibility that “where the Constitution is silent,” legislatures may have no authority to act.

    Their approach says, “where the Constitution is silent, the judiciary must defer to the legislature.” That’s not by any stretch of the imagination a necessary originalist conclusion, as the Framers created a government of limited, enumerated, powers. Power not mentioned was power not given.

  9. Chris says:

    Martin Heidegger was a fucking Nazi. So much for “philosophers.”

    Mussolini was a Fascist. So much for Christians.

    Er wait, this sort of reasoning doesn’t work? Much like your criticism of social science: it’s not perfect, and it often comes to conclusions that I disagree with on ideological grounds, therefore I’m not going to trust any of it.

  10. tom van dyke says:

    What neither Justice Scalia nor Mr. Van Dyke want to address is the possibility that “where the Constitution is silent,” legislatures may have no authority to act.

    Perhaps. But the 14th doesn’t abolish the authority of the states. Not yet anyway.

    Martin Heidegger was a fucking Nazi. So much for “philosophers.”

    Mussolini was a Fascist. So much for Christians.

    Heidegger’s philosophy is tied to his Nazism. It’s considered a problem among philosophers for philosophy. This was not a rhetorical point.

  11. D.A. Ridgely says:

    Most of the philosophers I’ve ever known are largely if not entirely indifferent to Heidegger. Could you name some who consider his Nazism “a problem … for philosophy”?

  12. tom van dyke says:

    And if I did go into the tall weeds with you, DAR, what possible difference would it make to you or to the topic? What if I’m right, what if I’m wrong? The best I could do is play dueling googles to find something you might find convincing. And if I did, so what? It was a passing observation on philosopher-kings. If you’re genuinely interested, you can google it yourself. Further, Heidegger still holds his place in continental philosophy. “The philosophers you have known” doesn’t tell us much. And if Heidegger is irrelevant, that doesn’t tell us much either. I don’t want to be ruled by Nietzsche either. Or Rawls, if I can help it.

    None of this has anything to do with the topic and thrust of your post. I’ve had my say and thanked you for spurring thought on it. Thank you again.

  13. James Hanley says:

    the 14th doesn’t abolish the authority of the states.

    Well, if you phrase it as an absolute, then no. But you do realize that the 14th did in fact abolish certain authorities of the states, right? That’s what the phrase “Nor shall any state do…” means.

    Seriously, Mr. Van Dyke, do you ever manage to not make a mistake in your posts?

  14. Chris says:

    Heidegger is still one of the most cited philosophers, even outside of Continental proper, and the number of books written about him in the last 10 years probably dwarfs the number written on any other 20th century philosopher).

    Heidegger’s philosophy is tied to his Nazism. It’s considered a problem among philosophers for philosophy. This was not a rhetorical point.

    No, it wasn’t a rhetorical point, it was a stupid point. And can you point to more than a couple rather tendentious books in which it is considered a problem for his philosophy, much less for philosophy in general? Seriously, you know not of what you speak, as usual.

    And it would be quite easy to make the claim that [insert horrible person here]’s [insert horrible deeds here] were directly related to their Christianity, or their Islam, or their being a conservative or a liberal, or whatever. Again, it’s not a rhetorical point, it’s a stupid point. People all the time claim that Christianity/Islam/Liberalism/Conservatism/Whatever are directly tied to horrible thing X because a particular Christian/Muslim/Liberal/Conservative/Whateverist participated in or whas responsible for horrible thing X, and while there are some idiots who think that an individual or a few individuals can condemn entire world-views or disciplines (we see this a lot lately with Islam, say by you), these people are idiots for a reason.

  15. D.A. Ridgely says:

    *shrug* Yes, I’m aware of the rise in interest in Heidegger in the last decade. Same with Nietzsche, but then I know people who take Foucault seriously, too. My admittedly deep-seated and only somewhat irrational prejudice against Continental philosophy remains unscathed by admonitions from Chris and others I respect that I should be more broad minded on the subject. Life is too short to read phenomenology, let alone just about all French theory of any variety. *grin*

    The point, Mr. van Dyke, is that you made a factual claim which I believe to be not only irrelevant, as you now acknowledge, but also false. I can’t imagine anyone seriously contending that Heidegger’s politics, whatever they may have been, were a problem for philosophy in general or even for the rest of his philosophy, so I’d be interested in hearing who has made such a claim. Yes, who I know or do not know is merely anecdotal, but the burden of proof “in the weeds” seems to me to lie with the person who made the factual assertion, not with those who doubt it.

    Truth be told, these are minor points. But I’d appreciate it if participants in the conversation regarding the merits of originalism could hold the rhetoric, especially the ad hominem rhetoric, to a minimum.

  16. tom van dyke says:

    Since I don’t know what you’d find convincing, and not really hopeful of convincing anyone about anything hereabouts, I figure it’s not worth the bother. If you’re genuinely interested, you can google it yourself.

    But even if Heidegger’s philosophy doesn’t dictate Nazism, MacIntyre notes that it offers no grounds for a critique of it either.

    This is a problem. Or if you think it’s not, pls do offer your thoughts.

  17. D.A. Ridgely says:

    Okay, well, at least MacIntyre is someone I recognize though I admit I haven’t read much of his work, so perhaps you’ve met your “burden of production” on that point. *grin*

    Still, the philosophical woods are filled with people, Chris’s claim notwithstanding to the contrary, who are neither Heidegger scholars nor certainly self-identifed as Heideggerians and for whom Heigegger’s philosophy, politics or taste in opera are all utterly irrelevant to their ability to do philosophy. And that’s my principle point, here. Nonetheless, thanks for trying to be responsive.

  18. Michael Enquist says:

    “Power not mentioned was power not given.”

    Sure, you and I know that, but how many people who work for the government really believe that?

  19. Murali says:

    I argue all the time with Platonists who prefer philosopher-kings.

    Its not enough to throw out there that judges being able to decide this and that would make them like philosopher kings. You must also show what’s wrong with philosopher kings.

  20. tom van dyke says:

    “The philosopher,” as Plato pictures him, does not exist. We are all mere men. See Algernon Sidney.
    __________

    No, Dr. Hanley, you are wrong again. You are only right when you misrepresent my argument and defeat the caricature you make of it.

  21. James Hanley says:

    Whatever helps you sleep at night, Mr. Van Dyke.

  22. but then I know people who take Foucault seriously, too

    I am truly, truly sorry, and you have my sympathies.

  23. Chris says:

    I know this is completely off topic, but as some may remember from the last time it came up, I can’t help it…

    But even if Heidegger’s philosophy doesn’t dictate Nazism, MacIntyre notes that it offers no grounds for a critique of it either.

    MacIntyre also famously wrote that Heidegger’s Naziism was the result of a bifurcation of personality (and if you’re going to indict philosophy with Heidegger through MacIntyre, you should be intellectually honest and note what he says about Stein in the same friggin’ book).

    Anyway Tom, since it’s clear you’ve never read any Heidegger, I will simply note that it would be very strange to find that Heidegger’s admittedly incomplete philosophy ruled out Naziism, or any other political philosophy for that matter. Fortunately, many have used it, some conservative, some liberal, some leftist, without falling into Naziism or fascism or Totalitarianism (well, OK, maybe Sartre), suggesting that the link is hardly an inevitable one. Habermas is a good example. At one point, he considered himself a Heideggerian, but then he read the intro to Heidegger’s lectures on metaphysics (which were published a few decades after they were given), in which he invokes National Socialism, and he developed a hate for Heidegger. After this, he remained a Heideggerian, he simply didn’t cite Heidegger anymore. Apparently it’s possible to separate the man and the philosophy.

    Oh, and I take Foucault seriously. I think he has some important insights, particularly in his early, pre-power books, though I think his concept of “power” can be illuminating as well. There’s a lot of really bad 20th and 21st century French philosophy (Badiou, anyone?), but Foucault isn’t so bad.

  24. Chris,

    I apologize for knocking on Foucault, especially since I’ve read only one book of his (Discipline and Punish) and found it not too bad. I was just having memories of some of the insufferable, self-proclaimed Foucauldians I knew when I got my MA.

  25. Chris says:

    Pierre, no offense taken. Most Foucault people I’ve met have been insufferable as well. Not as bad as Derrideans, though.

  26. tom van dyke says:

    Thx, Chris. I was aware of Farias’ book, but not that it was Habermas who wrote the foreward to it.

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