Constitutional Change: A Parable

 

640px-Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesOn Monday I say, “Here is a wonderful document. It establishes a federal republic based on checks and balances with the purpose of protecting our natural rights and securing the blessings of liberty. It is a living document, and explains how we can update it if we need to.” And you say, “This is a good document.” On Tuesday I say, “The document has some new sentences. Now it also says we should end slavery.” And you say, “That is also good.”

On Wednesday, however, I say, “Now the document says there are some other rights that overrule some of the old ones.” And you say, “Can I read the new sentences?” I reply: “There are no new sentences. Just a new meaning.” You ask, “Where did the old meaning go, and how did you squeeze this new meaning into the old sentences?”

On Thursday I say, “Now the document says we have the right to marry any way we like. Today two men can marry each other, and tomorrow they can marry five men or five women; after that, perhaps they can marry their mothers and their dogs if they like.” You ask when the document started meaning this, and I answer “Just this morning.” You ask when I updated the words to include this new meaning and I say, “The words have not changed since Tuesday.” It’s hard to say what will happen on Friday, but it probably won’t be good.

The Theory of Originalism

Originalism in law is the theory that the meaning of the Constitution does not change except when the text changes. That is, every change in Constitutional meaning must be accompanied by a change in the words.

A related view is that the meaning of the Constitution is what its authors meant by it. This view is necessarily a version of Originalism, but not all Originalisms entail this. (More on that later!)

Objections Considered

Some objections to Originalism are worth considering, not because they are particularly good objections, but because they help to clarify what Originalism actually is.

Objection 1: The original meaning of the Constitution is outdated.

Response: This is irrelevant because we have amendments.

In fancier language, this objection mistakes the originality in question. An Originalist looks primarily to the meaning of the Constitution at the time of the Founding not because that part of the text is more sacred than its amendments, but because that’s when most of the text was written, adopted, and first read. When interpreting the 14th Amendment, however, he looks to the 1850s and 1860s. For the 26th, he looks to the 1970s. Being a good Originalist does not mean being stuck in 1787; it means looking to the original meaning of all the relevant parts of the constitution when they were written.

In a sense, all citizens are potential, indirect authors of the Constitution; we choose the federal and state representatives who select the original meaning of the next addition to the Constitution.

Objection 2: It’s too hard to know what was in the mind of the authors.

Response: The original meaning of nearly any text can take some work to understand. If it’s ever unclear in a problematic way, we can clarify the matter by adding an amendment because we can be the authors.

Also, this objection applies only to the usefulness of the claim that meaning is located here or there, and doesn’t affect its truth. (It’s hard for me to know what sort of rocks are a mile under my house, but that doesn’t make the sentence “There are granite rocks a mile under my house” either true or false.)

Objection 3: The Founders envisioned the laws applying in different ways than we now know to be necessary.

Response: If these applications are part of the meaning of the text, then this is Objection 1 again. If these applications are not part of the meaning, then this is not an objection to Originalism, but some (perhaps very good) advice on how to apply it.

Objection 4: The Constitution is about law and ethics, and these things don’t allow for clear and precise language of the sort that Originalism requires.

Response: It’s a myth that language about ethics and law is necessarily less clear and precise than language about physics, history, food, football, or pretty much anything else.

Even if it were not a myth, this is no case against Originalism. If it refers to the vagueness and ambiguity of application, then it is a retread of Objection 3 (which is, itself, often a retreat of Objection 1). If it refers to the difficulty of understanding authorial intent, it is a retread of Objection 2.

If it refers to some lack of stable reality with which ethics and law are concerned, then I say exercise your moral relativism consistently and stop imposing it on the rest of us!

Objection 5: Language never has any fixed meaning anyway.

Vernacular response: Eh? What? Speak clearly, laddie. I can’t understand you!

Technical response: If you can communicate your objection using language, Madison should be able to communicate a restriction on the federal government using language.

Extended response: We have annotated copies of Shakespeare explaining the linguistic difficulties. If high school kids can understand Shakespeare, federal judges ought to be able to understand Madison.

On a related note, why don’t we pass out annotated copies of the Constitution and make high school kids read them?

Why I Am an Originalist

I am an Originalist for the same reason a Supreme Court Justice (Clarence Thomas, I believe) is an Originalist: This is the view that should be considered correct by default, and I have no reason to think otherwise. The burden of proof lies with the objector to Originalism.

This is how written language normally works when people with some facility for reading read things written with at least a modicum of clarity. It’s why, if you disagree with me, you are able to disagree with me and not merely with the words you are reading.

(There are other reasons to accept Originalism in law. Michael Paulsen makes an argument in “Does the Constitution Prescribe Rules for Its Own Interpretation?” Robert Delahunty and Ricochet’s John Yoo make another one in “Saving Originalism.”)

But It’s Not All About the Authors!

Let’s first note this possible theory that can be added to Originalism: There is one meaning, but there can be many applications. Alternatively: The meaning of the Constitution is controlled by the author, but its application is not.

Now let’s make a distinction between Originalist Textualism and Originalist Intentionalism. According to the former, meaning is in the text; according to the latter, meaning is in the intent of the authors.

Now, as it turns out, sticking to authorial intent alone can be problematic. We need a subtler understanding. For an analogy, consider Professor Dumbledore in the Harry Potter series, whom author J. K. Rowling announced is gay after the series wrapped up. The text of her series contains no support for this (nor, any information regarding his sexuality at all). If authorial intent is all there is to meaning, then Dumbledore has always been gay; but if Rowling changes her mind later, then he will have never been gay; so it will be true and false that he was gay yesterday, which is impossible. The better answer is that the question has no definitive answer, as it is not provided or supported in the text.

So the best view is probably an Originalist Textualism. The meaning is in the text, although is shaped by the author. In practice, seek for meaning in the text itself, but always allow your understanding of it to be revised by a better knowledge of the author’s mind.

But the authors aren’t the only relevant people to consider here.

James Madison tells us that the Constitution is given its authority by the people:

[The Constitution] was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.

Accordingly, he also tells us that the only sense in which the Constitution is “legitimate” is “the sense in which the Constitution was accepted and ratified by the nation.” Those are powerful reasons to also consider the adopters of the Constitution, rather than the authors alone, to be a source of its meaning.

In the history of contemporary Originalism, that is precisely what Originalists did. Contemporary Originalism began with Judge Bork, who emphasized the original intent in writing on the part of the Constitutional authors. Originalists later shifted to emphasize the original understanding in approving by the Constitutional adopters.

But they didn’t stop there, and I don’t think we should either. The authors matter, and the adopters matter. But what matters most is not authorial intent, nor what the adopters thought it meant, but what the text itself means. That’s the real significance of Madison’s sense-in-which-it-was-accepted. There’s less need to ask “What was so-and-so thinking in year such-and-such?” The bigger question is “What did these words mean in year such-and-such?” That question should be answerable in most cases; in those where it is not, perhaps an amendment is in order.

So Originalists have shifted again: to an emphasis on the original meaning in reading by reasonable and informed readers. The story of these shifts in Originalist legal theory has been told by Mike Paulsen in “The Interpretive Force of the Constitution’s Secret Drafting History” (pages 1134-1148) and by that article from Delahunty and Yoo (pages 1088-1097).

Paulsen in these articles and others has some wonderful commentaries on what Originalism means. Gary Lawson’s article “No History, No Certainty, No Legitimacy … No Problem” is superb.

One Last Puzzle

The puzzle: If the authors control the meaning, it should be impossible for the authors of the Constitution to disagree on its meaning. Yet they did, for even the Founders disagreed with each other on constitutional matters when they came to power.

Response: Even if Originalist Intentionalism is true, there is one plausible way to handle this puzzle: They do not disagree on meaning but on application. In much the same way, I could agree with my wife that “We should take the best route to Houston” and still find room to disagree on what the best route is.

Given Originalist Textualism, it is easy for some authors to be partially mistaken regarding the meaning of their own texts, for the same reason that any person, speaking unclearly, can accidentally and without even noticing say something he does not mean. Even more than this, a person can fail to understand the full meaning of his own words. I could say to my son “Be good and virtuous,” and think I have a pretty good idea what that means, but years later he might know better what they mean. (And hopefully he will.)

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  1. Beatrice Campbell Member
    Beatrice Campbell
    @

    Great post particularly as I so admire Clarence Thomas; you should read his autobiography My Grandfather’s Son if you get the opportunity. The random injustices he suffered in his life explain much about why he believes so vehemently in the originalist interpretation of the Constitution.

    • #1
  2. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Beatrice Campbell:Great post particularly as I so admire Clarence Thomas; you should read his autobiography My Grandfather’s Son if you get he opportunity.

    Indeed.  You know, it’s probably not even on one of my lists.  I think I’ll put it on one.  (Not that that means I’ll actually read it.)

    • #2
  3. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    The meaning of the constitution does not change. The interpretation of the constitution changes because those in power have the ability to use governmental force to enforce their will upon the populace and “interpret” (read corrupt and twist its meaning) the constitution differently to justify and give the veneer of legitamacy to their new “interpretation”. At this point the US constitution is mostly a meaningless document only valuable because of its historic significance and possibly as a propaganda tool to fool the masses.

    • #3
  4. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Fake John/Jane Galt:The meaning of the constitution does not change.

    Except when the text changes, right?  (I think the meaning and the text both changed as recently as the 1990s–the last Amendment.)

    The interpretation of the constitution changes because those in power have the ability to use governmental force to enforce their will upon the populace and “interpret” (read corrupt and twist its meaning) the constitution differently to justify and give the veneer of legitamacy to their new “interpretation”.

    Indeed.

    At this point the US constitution is mostly a meaningless document only valuable because of its historic significance and possibly as a propaganda tool to fool the masses.

    I’m not quite that pessimistic, but I like your pessimistic style.  (And I would have said mostly “useless,” because it isn’t meaningless in the most important sense.)

    • #4
  5. I Walton Member
    I Walton
    @IWalton

    Agree with everything.  The constitution was written with an understanding of human nature and human politics and that doesn’t change.  The only  things that have been changed by technology are  the right of search and seizure,  and the right to bear arms.  We don’t allow nucs, or ground to air mussels and we can’t amend the constitution every time some new technology extends our ability to search or kill.  These must be dealt with through legislation.

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  6. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    I Walton:Agree with everything. The constitution was written with an understanding of human nature and human politics and that doesn’t change.

    I concur.  I go further, though.  Even if it had been based more on changeable things, I’d say it still hasn’t changed–though in that case it might need some change.

    • #6
  7. Mark Coolidge
    Mark
    @GumbyMark

    Textualism is the way to go.  It is very difficult to determine Intentionalism based on those participating in the ratifying conventions.  There is huge variability in the availability of documentation as Pauline Maier showed in Ratification.  And judges and trial and appellate lawyers make for really bad historians.

    The bigger issue is the one raised by others on this thread.  The Supreme Court has changed the meaning of the Constitution, in some instances beyond recognition.

    The only remedy is one that many conservative jurists seem reluctant to deploy – disregard the Court’s precedents.  Currently, the only justice willing to do this on occasion is Thomas.  Until we have a President willing to appoint justices willing to go back to the original text and ignore precedent we will be stuck with a one way rachet in which the Court increasingly departs from the text.

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  8. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Mark,

    Thanks for the comment!

    The bigger issue is the one raised by others on this thread. The Supreme Court has changed the meaning of the Constitution, in some instances beyond recognition.

    I don’t think they’ve done anything of the sort.  They’ve only changed what people think the meaning is.

    The only remedy is one that many conservative jurists seem reluctant to deploy – disregard the Court’s precedents.

    Indeed.

    (Well, it’s not the only remedy.  Impeachment is an option, as is term limits; there’s always jurisdiction-stripping; and there might be other remedies).

    • #8
  9. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Saint Augustine:

    At this point the US constitution is mostly a meaningless document only valuable because of its historic significance and possibly as a propaganda tool to fool the masses.

    I’m not quite that pessimistic, but I like your pessimistic style. (And I would have said mostly “useless,” because it isn’t meaningless in the most important sense.)

    It may not be meaningless to you and to me but to many of those in power such as our current POTUS it is quite meaningless.  On the other hand they do find it useful when they can twist its interpretation to meet their political progressive agenda and justify their use of state force.  Example it became quite useful to them when they found the recent SSM interpretations that seems to have been hidden there all these many years.

    • #9
  10. Mark Coolidge
    Mark
    @GumbyMark

    Saint Augustine:

    Mark,

    Thanks for the comment!

    The bigger issue is the one raised by others on this thread. The Supreme Court has changed the meaning of the Constitution, in some instances beyond recognition.

    I don’t think they’ve done anything of the sort. They’ve only changed what people think the meaning is.

    Actually, the Court has, for effective purposes and in a demonstrable way directing impacting people, changed the meaning.  I understand that you are making a different point about the immutability of meaning but unless we are prepared to deal with the practical, political implications of what has happened nothing will ever change.  And those practical implications make the corrective path much harder.

    • #10
  11. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Mark:

    Saint Augustine:

    Mark,

    Thanks for the comment!

    The bigger issue is the one raised by others on this thread. The Supreme Court has changed the meaning of the Constitution, in some instances beyond recognition.

    I don’t think they’ve done anything of the sort. They’ve only changed what people think the meaning is.

    Actually, the Court has, for effective purposes and in a demonstrable way directing impacting people, changed the meaning.

    If meaning is determined in whole or in part by perception or practical effect, yes.  But I don’t think it is–not for the Constitution.  (Probably for some other forms of writing, especially poetry.)

    I understand that you are making a different point about the immutability of meaning but unless we are prepared to deal with the practical, political implications of what has happened nothing will ever change. And those practical implications make the corrective path much harder.

    I agree with that!

    • #11
  12. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Fake John/Jane Galt:

    Saint Augustine:

    At this point the US constitution is mostly a meaningless document only valuable because of its historic significance and possibly as a propaganda tool to fool the masses.

    I’m not quite that pessimistic, but I like your pessimistic style. (And I would have said mostly “useless,” because it isn’t meaningless in the most important sense.)

    It may not be meaningless to you and to me but to many of those in power such as our current POTUS it is quite meaningless.

    I like your pessimistic style!  But you said, “The meaning of the Constitution does not change.”  So it’s not meaningless.  What it is is a text with a meaning that many no longer know how to access.

    Like my homeboy Paulsen said, it’s like that episode of Star Trek: meaningful, but unknown.

    On the other hand they do find it useful when they can twist its interpretation to meet their political progressive agenda and justify their use of state force. Example it became quite useful to them when they found the recent SSM interpretations that seems to have been hidden there all these many years.

    I don’t think that’s what they did.  They didn’t say it had been hidden there; then their argument would have been Originalism-based.  It wasn’t Originalism-based, was it?

    • #12
  13. Front Seat Cat Member
    Front Seat Cat
    @FrontSeatCat

    How can we learn if anything written is always relative?  Is there ever absolute truth in original interpretation? Not if you are always at the mercy of the whims of changing cultures.  Even the context of when and why something is written is important to the writing.  It doesn’t become outdated because it’s a different era.  It reminds me of the Bible. It is twisted and parts are left out so that it will better fit with a person or group’s beliefs instead of the other way around.

    I wonder how US history is being taught in schools and colleges now – the wonder and awe of how we became a free people, why our founding documents have stood the test of time, and how in its whole and intact state, guarantees that future generations will have the same.  So many people from other countries understand what we have, love and appreciate it.  It seems our own culture has the biggest problem with our history and laws. Thanks for a great post!

    • #13
  14. Merina Smith Inactive
    Merina Smith
    @MerinaSmith

    My husband, a law professor, tries very hard to avoid teaching Constitutional Law because the judges have made it a confusing mess.  He likes teaching constitutional theory, however, and has to infuse as much of that into the Conlaw class as possible to even make it through. Thanks, Judiciary.

    • #14
  15. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Saint Augustine:

    On the other hand they do find it useful when they can twist its interpretation to meet their political progressive agenda and justify their use of state force. Example it became quite useful to them when they found the recent SSM interpretations that seems to have been hidden there all these many years.

    I don’t think that’s what they did. They didn’t say it had been hidden there; then their argument would have been Originalism-based. It wasn’t Originalism-based, was it?

    From what I can tell they just made it up and claimed the constitution made it so.  Their ruling should have been that the constitution does not speak to marriage at all, any marriage, be it traditional, SSM or poly marriage.

    I believe they are claiming the 14th spoke to SSM under the Equal Protection Clause but they way they are applying it seems to leave them open to the argument that anybody could do anything provided one person can do it.  It shall be interesting to see where that can of worms ends up going to.  But this is government and effectively they are just doing what they want and backing it up with force so it does not have to make sense.

    • #15
  16. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Fake John/Jane Galt:I believe they are claiming the 14th spoke to SSM under the Equal Protection Clause but they way they are applying it seems to leave them open to the argument that anybody could do anything provided one person can do it.

    You know, on certain superficially similar situations, I could actually agree with that sort of argument–without sacrificing Originalism.  Like Scenario 3 in that other post I did on the subject.

    It shall be interesting to see where that can of worms ends up going to. But this is government and effectively they are just doing what they want and backing it up with force so it does not have to make sense.

    Indeed.

    • #16
  17. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Front Seat Cat:How can we learn if anything written is always relative? Is there ever absolute truth in original interpretation? Not if you are always at the mercy of the whims of changing cultures. Even the context of when and why something is written is important to the writing. It doesn’t become outdated because it’s a different era. It reminds me of the Bible. It is twisted and parts are left out so that it will better fit with a person or group’s beliefs instead of the other way around.

    I wonder how US history is being taught in schools and colleges now – the wonder and awe of how we became a free people, why our founding documents have stood the test of time, and how in its whole and intact state, guarantees that future generations will have the same. So many people from other countries understand what we have, love and appreciate it. It seems our own culture has the biggest problem with our history and laws. Thanks for a great post!

    Thanks for reading, and thanks for those comments!

    I got nothing to add, but I kinda wish I did.  Rejections of Originalism in religion and law do have some similarities that would be worth a few books, to say nothing of a Ricochet post!

    • #17
  18. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Merina Smith:My husband, a law professor, tries very hard to avoid teaching Constitutional Law because the judges have made it a confusing mess. He likes teaching constitutional theory, however, and has to infuse as much of that into the Conlaw class as possible to even make it through. Thanks, Judiciary.

    You know, my little law collection on my phone’s Kindle app contains 2 or 3 pieces by him.  They were very good.  I think I would enjoy taking either of those courses from him.

    • #18
  19. Larry3435 Inactive
    Larry3435
    @Larry3435

    Each time you post on this Auggie, you miss the real objection, which is that there are lots of Constitutional questions that originalism cannot answer.  There is simply is no originalist answer – not in the text, nor the minds of the drafters, nor the minds of the adopters, nor even in the practices commonly in place at the time of adoption (you don’t really mention that last one).

    An example:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  How does this provision answer the question of whether a religious practice that violates a law of general applicability is Constitutionally protected?  Such as, (1) human sacrifice; (2) animal sacrifice; (3) use of peyote in religious ceremonies; (4) use of alcohol in religious ceremonies; (5) refusal to bake a cake for a gay wedding; (6) refusal to bake a cake for a Jewish wedding; (7) polygamy; (8) religious weddings of minors; (9) pretty much all of Sharia law.

    Originalism provides no basis to answer these questions.  Originalism is fine, where it applies.  But a defense of originalism must recognize that it does not always apply.

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  20. Grosseteste Thatcher
    Grosseteste
    @Grosseteste

    Saint Augustine: This is how written language normally works when people with some facility for reading read things written with at least a modicum of clarity. It’s why, if you disagree with me, you are able to disagree with me and not merely with the words you are reading.

    An excellent formulation–really clarifies the issue, and I intend to use it someday.

    • #20
  21. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Saint Augustine: But they didn’t stop there, and I don’t think we should either. The authors matter, and the adopters matter. But what matters most is not authorial intent, nor what the adopters thought it meant, but what the text itself means. That’s the real significance of Madison’s sense-in-which-it-was-accepted. There’s less need to ask “What was so-and-so thinking in year such-and-such?” The bigger question is “What did these words mean in year such-and-such?” That question should be answerable in most cases; in those where it is not, perhaps an amendment is in order.

    This is so helpful, and also where you later say that the authors didn’t even agree with each other. But they came to agreement eventually through the approval process. Thank you for laying this out so well!

    • #21
  22. Beatrice Campbell Member
    Beatrice Campbell
    @

    Augustine, I was thinking some more on this post today and how well it emphasized that the law can be so heavily dependent upon an individual’s interpretation and personal experience as noted with Bork and Thomas -thus the extreme importance of Originalism in a system that values the blindfold of justice.

    Please keep such posts coming; I enjoy reading your work.

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  23. Z in MT Member
    Z in MT
    @ZinMT

    I am sure Augustine will respond better to Larry’s objection than I can, however I would say that Originalism always applies when the Constitution applies. Often things reach the supreme court that are not constitutional issues, in those cases SCOTUS should defer to the legislative and executive branch interpretations. The religious issues you bring up to me are red herrings- Human Sacrifice? really? Even the case of SSM vs. bakers and Sharia Law is about competing rights between individuals not groups. Originalism does not oppose judges adjudicating among competing rights between individuals.

    Where I think the non-origininalist interpretation runs astray is forgetting the existence of the 9th and 10th amendments which clarifies that the Constitution is not the grantor of rights, but only a guarantee on certain rights. If new rights are recognized politically that doesn’t mean that the constitution needs to be reinterpreted. The constitution has nothing to say about the right to civil marriage.

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  24. hokiecon Inactive
    hokiecon
    @hokiecon

    This is a fantastic post.

    • #24
  25. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:Each time you post on this Auggie, you miss the real objection, which is that there are lots of Constitutional questions that originalism cannot answer. There is simply is no originalist answer –  . . . .

    . . . Originalism is fine, where it applies. But a defense of originalism must recognize that it does not always apply.

    Is this supposed to even be a real objection?  Logically, it amounts to the (true) premise that Originalism doesn’t answer every question, used to support the conclusion that Originalism isn’t true.  But that premise provides no support at all for that conclusion.  It’s not like Originalism was ever thought to be a grand theory of everything legal.

    If that’s not the conclusion going for, then please start again, and state your conclusion this time.

    • #25
  26. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:

    An example: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” How does this provision answer the question of whether a religious practice that violates a law of general applicability is Constitutionally protected? Such as, (1) human sacrifice; (2) animal sacrifice; . . . .

    Originalism provides no basis to answer these questions. . . .

    Originalism by itself can’t provide those answers, and isn’t meant to.

    Originalism, by definition, posits that the relevant bases for answering any question left ambiguous by the text alone are found in a good knowledge of the relevant history, linguistics, political theory, economic theory, philosophy, or law.

    So your remark here seems either to betray an ignorance of what Originalism is, or else to presume that you yourself have such an exhaustive knowledge of these fields as to know that there’s no answer to those questions there.

    As it happens, I myself possess enough knowledge to point to a good basis to address the first two questions with reference to the minds of writers, adopters, and readers all.  They’re aiming at protecting religious liberty, which is a fairly well defined concept at the time.  Locke is to some degree a testament to this concept and to some degree a shaper of it, since them dudes were reading Locke.

    Locke’s theory provides the perfect answer to those first two–human and animal sacrifice–and he even makes that application explicit.  Religious liberty protects the second, but not the first.

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  27. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Z in MT:I am sure Augustine will respond better to Larry’s objection than I can, however I would say that Originalism always applies when the Constitution applies.

    Indeed.  And it doesn’t need to apply elsewhere.

    Often things reach the supreme court that are not constitutional issues, in those cases SCOTUS should defer to the legislative and executive branch interpretations.

    Indeed.

    Where I think the non-origininalist interpretation runs astray is forgetting the existence of the 9th and 10th amendments which clarifies that the Constitution is not the grantor of rights, but only a guarantee on certain rights.

    Indeed.

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  28. Luke Thatcher
    Luke
    @Luke

    This is great. Really great. I really like the taxis here. It’s really well put together.

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  29. Rodin Member
    Rodin
    @Rodin

    During the course of my career I had occasion to draft language for contracts and policies. Every once in awhile someone would provide a different, but plausible, meaning to language I had drafted. Now if I was the enforcement entity, my meaning would carry the day. But if I wasn’t the enforcement entity then my explanation would be persuasive but not dispositive. In other words, I could screw up the drafting, and my phrasing could be given a different meaning than I intended. And that is how it should be. To do otherwise is to invite lazy language or render all language as subject to current preferences. This is chaos. And unfortunately describes too many Supreme Court decisions.

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  30. Larry3435 Inactive
    Larry3435
    @Larry3435

    Z in MT:I am sure Augustine will respond better to Larry’s objection than I can, however I would say that Originalism always applies when the Constitution applies. Often things reach the supreme court that are not constitutional issues, in those cases SCOTUS should defer to the legislative and executive branch interpretations. The religious issues you bring up to me are red herrings- Human Sacrifice? really? Even the case of SSM vs. bakers and Sharia Law is about competing rights between individuals not groups.

    I used examples where people are likely to reach different conclusions based on similar facts.  For example, Auggie says that human sacrifice may be prohibited by law, but the Constitution would bar a law against animal sacrifice as part of a religious ritual.  I have my doubts about that, but my point is that nothing in the doctrine of originalism gives us a basis to support that conclusion.

    Saying that this is not a Constitutional question is simply wrong.  The Constitution protects religious liberty.  That includes liberty to engage in religious conduct, as well as to hold religious beliefs.  But not all conduct is protected by the First Amendment, even if someone believes (in good faith) that their religion requires that conduct.  Judges have to draw that line, and originalism does not help them to draw it.

    As for competing rights of individuals versus groups, I don’t understand your point and I ask that you further explain it.

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