Yesterday’s Non-Originalism

 

James_Madison_Portrait2Conservatives tend to be originalists in constitutional interpretation. But not all to the right of center are originalists, and not all non-originalists are hard-core, leftist living constitutionalists. There’s a view of non-originalism that’s remarkably compatible with conservativism. I don’t endorse it myself, but it’s well worth looking at.

Another way of putting it: There’s an alternative to originalism that’s not today’s alternative. It’s not the Left’s. It’s old, or at least it has old roots. It has a lot to do with Madison. Let’s start with some of his principles and build up to that alternative:

First, 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.

So said Representative Madison to the Congress in 1796.

Second, Madison tells us in that speech that the will of the people can determine the meaning of the Constitution.

Third, he tells us that the repeated interpretation of multiple branches of government sets a precedent of constitutional interpretation for future legislation. Madison:

. . . the constitutional authority of the Legislature to establish an incorporated bank . . . [is] precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation . . . .

That was President Madison in his 1815 message accompanying a veto of the National Bank. He had once thought a National Bank unconstitutional, but here he’s changed his mind: Although he vetoes the bill, he makes it clear that he is doing so on policy grounds, not constitutional grounds. In 1816, he signed what he said was a better bill, authorizing the Second Bank.

Fourth, although he tells us that the meaning of the words does not change over time, he also tells us that the only legitimate meaning of the Constitution is that accepted and ratified by the people:

. . . I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no Security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption.

That was Madison in a letter written in 1824.

Fifth, Madison tells us that the meaning of the Constitution chosen by the people through the repeated and continued decisions of diverse branches and levels of government overrules even his own view of the meaning of the Constitution:

My construction of the Constitution on this point is not changed. But I regarded the reiterated sanctions given to the power by the exercise of it, thro’ a long period of time, . . . under every administration preceding mine, with the general concurrence of the State authorities, and acquiescence of the people at large . . . all this I regarded as a construction put on the Constitution by the Nation, which having made it had the supreme right to declare its meaning . . . .

That was Madison in 1826, explaining to Lafayette why he had eventually opted not to veto the national bank.

Sixth, Madison again tells us that in his judgment, the people had determined the meaning of the Constitution. They had done so by “a course of precedents” set by all the branches of government and “amounting to the requisite evidence of the national judgment and intention.” And that, he tells us, is why he had not vetoed the national bank. (This is in an 1831 letter commenting on Jackson’s veto of the bank.)

So the people of the United States of America control the meaning of the Constitution, and they decide what it means through the repeated decisions of multiple branches of government. If these Madisonian principles are taken to their extreme, it’s pretty clear that the people can thereby change the meaning of the Constitution. Thus law scholar Gerard Magliocca says of Madison’s hermeneutics that “This Burkean approach to constitutional interpretation is the antithesis of originalism.” (page 217)

Now, Madison doesn’t actually say as much (as far as I can tell). These principles might not be taken to their extreme; they might accompany an originalism and simply be used only to clear up ambiguities in original meaning. Magliocca is countered by Judge Richard Arnold, who says of Madison that “He certainly was an advocate for originalism … in the sense of the original meaning of the document, when viewed against the times in which it was adopted.” (page 292)

But whatever. Let’s consider those principles taken to their extreme: The will of the people controls the meaning of the Constitution, and it is expressed through the decisions of the government the people select. Precedent determines the meaning of the Constitution. Precedent includes judicial rulings, but also executive decisions and, most importantly, acts of Congress. The people’s control over constitutional meaning is absolute. What a passage of the Constitution did not mean when it was written and adopted, it may mean today — if the people want it to.

So, for example, say an interstate highway system under federal management or federal funding is not consistent with the original meaning of the original Constitution or any subsequent amendments. No problem: It’s constitutional now. Ditto for a federally managed social security system.

And note how different this is from the left’s non-originalism:

  • Judicial acts aren’t enough to change the Constitution. The Madisonian view requires the consent of the people via repeated decisions by multiple branches of government, as well as the States.
  • Change in constitutional meaning happens slowly.
  • One who discerns a change in constitutional meaning is looking to the settled will of the nation in the past. In allowing that change, he’s still conservative in an important sense — recognizing a change in the Constitution in order to not change the country that was created by We The People.

Now, I’m an originalist myself. But I think this here is a pretty respectable view. Though there’s a dispute between originalism and the Madisonian version of non-originalism, both are opposed to the Left’s “living constitution” version of non-originalism. In fact, while I could be wrong about this, I think when we talk about pitting originalism against this Madisonian view, we’re more or less talking about Ricochet’s Yoo v. Ricochet’s Epstein. And those dudes are both pretty cool.

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  1. Larry3435 Inactive
    Larry3435
    @Larry3435

    Saint Augustine:I’m fairly confident (though by no means certain) that I’m following you here, and I agree with what I’m following (or what I think I’m following).

    But do you take these considerations as objections to Originalism? I was under the impression that that was your original purpose in bringing up “functionalism.” But I don’t consider these considerations to weigh against Originalism at all.

    Most people who use the term “originalism,” it seems to me, are talking about the original meaning of the words.  I agree with that, in cases where the words actually offer an answer.  But in other cases, I would look to the original intent.  Original intent, rather than original meaning.  In that sense, I am an originalist.  I definitely reject the idea that the Constitution changes it’s meaning with fads (like “micro-aggressions”) and swings in public opinion.  And I don’t take Madison’s words as supporting that idea either.

    • #31
  2. Sowell for President Member
    Sowell for President
    @

    I think Larry’s distinction is important. Madison seems to object to relying upon original intent, but to favor relying upon the original understanding of the words. He and others made this same objection in the initial Congresses in the 1790’s. But the objection is against one sort of originalism, not against all originalism.

    • #32
  3. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    I wish we could have Sowell be president.  That would be so great.

    We seem to have a lot of agreement on principles here, which is really neat.  There’s a bit of confusion over words that I’m not inclined to get much involved in.  It’s Sunday morning over here, and I need to rest!

    Thanks, folks!  I’ll be standing by if more comments come up.

    • #33
  4. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Larry3435:…The other part of the Constitution, however, is different. It is about limiting the power of government. This part includes the enumerated powers of the federal government, the Bill of Rights, the 14th Amendment’s equal protection and due process clauses, etc. The purpose of this part of the Constitution is to protect against abuses of the democratic process. Abuses of the majority. Simply put, against mob rule.

    Originalism is not well suited to interpretation of the second part of the Constitution, because the issues that arise about possible abuses of governmental power are almost always issues that the founders did not foresee (or, as in the case of slavery, which the founders could not resolve among themselves). For this part of the Constitution, I favor a “functionalist” approach. The question becomes “is this the kind of governmental overreach that the Constitution was intended to prevent?” That question really can’t be resolved by reference to the language of the Constitution alone. It requires a knowledge of the history and philosophy that underlies the Constitution.

    I agree with this, but I would add that the closer one stays to the original meaning the more legitimate is his interpretation.

    • #34
  5. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    There is a parallel, but not equivalency, between constitutional interpretation and the interpretation of statutes and contracts.

    First, look at the plain meaning. If that answers the question, we are done. (No one who is 33 years old can be president. Only exchanges created by the state, and not by the federal government, can provide subsidies to their subscribers.)

    If the meaning is not plain enough, look to the meaning of the provision at the time it was drafted. A good starting point is the textual context. What clues do we get from the rest of the document? For example, are there any clues in the 5th amendment about whether capital punishment was considered, in 1791, “cruel and unusual” and thus a violation of the 8th amendment?

    If that isn’t enough, try to ascertain what the problem was that they were trying to address. Examine the legislative history. Look at the conditions of the time. Do your best to understand the meaning as they understood it, and then apply that meaning to today’s issues.

    Don’t like the outcome? Then amend the constitution.

    • #35
  6. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Man With the Axe:There is a parallel, but not equivalency, between constitutional interpretation and the interpretation of statutes and contracts.

    . . .Don’t like the outcome? Then amend the constitution.

    No, I’m quite sure you got that last part wrong.

    If you don’t like the outcome you build up a political and cultural movement relying on some grand concepts that you meticulously avoid giving a precise definition for; you make sure to pick at least one grand concept that’s in the Constitution.

    Then you convince a critical mass of Supreme Court Justices to take that grand concept really, really seriously and to think of it the way the movement thinks of it.  (The Justices must be persuaded studiously to ignore the way it was thought of by any of the original writers, adopters, or readers of the Constitution.)

    Then you go to Court and you get to fix up the Constitution the way you like it.  There’s no need to go through that messy amendment process!

    • #36
  7. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    I think a distinction needs to be drawn between the questions of what a text means and whether or not to apply a given text to a particular situation.

    One can simultaneously believe that the text of of the Constitution does not allow the creation of a national bank and also believe that that text should not be applied to the question of whether to veto a bill creating such a bank.  Furthermore I think such a person could fairly be called an originalist provided his method of construing the text was to ascertain the original meaning.

    I think all the conservative Supreme Court justices hold such a view.  Scalia, for example, believes the Court’s 14th Amendment jurisprudence on the Incorporation Doctrine is incorrect on originalist grounds but is unwilling to vote to overturn it because he considers the matter as settled law.  In this case, what Scalia is doing is interpreting the 14th Amendment using originalism but not applying that interpretation.  Instead he is applying the text of the Court’s precedents to current controversies.

    Originalism is not the doctrine of applying the original text of the Constitution.  It is the doctrine of interpreting any text (including precedents) according to *that text’s* original meaning.  The question of what text to apply isn’t addressed by originalism one way or t’other.

    • #37
  8. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    Larry3435:Most people who use the term “originalism,” it seems to me, are talking about the original meaning of the words. I agree with that, in cases where the words actually offer an answer. But in other cases, I would look to the original intent. Original intent, rather than original meaning.

    I don’t think your distinction makes sense.  The intent of any text includes communicating the intended meaning.  The original intent is to communicate the original meaning.  Functionally,  ‘original intent’ and ‘original meaning’ are synonymous.

    • #38
  9. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Mack The Mike:I think a distinction needs to be drawn between the questions of what a text means and whether or not to apply a given text to a particular situation.

    . . .

    I think I understand, and I think I agree!

    On the question whether to apply the Constitution, an Originalist, at least in the short run, might be virtually indistinguishable from an Epstein or from that sort of Madisonian non-Originalism.  If, e.g., I were convinced that a federal social security system were unConstitutional according to original meaning, I wouldn’t want to fix that problem right now.  Today, go with Paul Ryan.  Tomorrow, work towards devolving that thing to the states or passing an amendment to make it Constitutional.

    • #39
  10. Larry3435 Inactive
    Larry3435
    @Larry3435

    Mack The Mike:

    Larry3435:Most people who use the term “originalism,” it seems to me, are talking about the original meaning of the words. I agree with that, in cases where the words actually offer an answer. But in other cases, I would look to the original intent. Original intent, rather than original meaning.

    I don’t think your distinction makes sense. The intent of any text includes communicating the intended meaning. The original intent is to communicate the original meaning. Functionally, ‘original intent’ and ‘original meaning’ are synonymous.

    I don’t think so.  Let’s take a very simple example – freedom of the press.  Does freedom of the press apply to a blogger?  At the time the Constitution was adopted, the word “press” certainly did not include the internet.  So by the original meaning of the word, the answer is no.  But the original intent was to prevent government from disrupting the free flow of public information, including dissent and criticism of the government.  By that standard, the answer is clearly yes.

    • #40
  11. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    Larry3435:I don’t think so. Let’s take a very simple example – freedom of the press. Does freedom of the press apply to a blogger? At the time the Constitution was adopted, the word “press” certainly did not include the internet. So by the original meaning of the word, the answer is no. But the original intent was to prevent government from disrupting the free flow of public information, including dissent and criticism of the government. By that standard, the answer is clearly yes.

    I think I see your point.  And I agree that the 1st Amendment covers bloggers.  I just disagree with your terminology.

    One reason I disagree is that I think the vast majority of people who say they favor original intent do not mean the sort of hyper-narrow interpretation you have in mind.  In fact I think that hyper-narrowism is a straw man created by the left to discredit conservatives, and that practically no one holds it.

    Continued below…

    • #41
  12. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    …continued from #41

    I recall during the Bork confirmation battle I read an article in the MSM that said that under Bork’s originalism the 4th Amendment wouldn’t cover wiretaps because listening devices didn’t exist in the 18th Century.  I believed the article and thought that I disagreed with Bork’s originalism.  Years later I read The Tempting of America and learned that Bork believed no such thing.

    I don’t think any prominent originalist thinks that the 1st Amendment doesn’t cover bloggers or that the 4th doesn’t cover putting bugs in someone’s home, or that modern firearms aren’t covered by the 2nd Amendment.

    • #42
  13. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    Larry3435:

    Mack The Mike:

    Larry3435:Most people who use the term “originalism,” it seems to me, are talking about the original meaning of the words. I agree with that, in cases where the words actually offer an answer. But in other cases, I would look to the original intent. Original intent, rather than original meaning.

    I don’t think your distinction makes sense. The intent of any text includes communicating the intended meaning. The original intent is to communicate the original meaning. Functionally, ‘original intent’ and ‘original meaning’ are synonymous.

    I don’t think so. Let’s take a very simple example – freedom of the press. Does freedom of the press apply to a blogger? At the time the Constitution was adopted, the word “press” certainly did not include the internet. So by the original meaning of the word, the answer is no.

    I don’t think so.  I think the meaning of “press” is a device used to disseminate ideas, and so the Freedom of the Press covers bloggers.

    • #43
  14. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    Mack The Mike:

    I don’t think your distinction makes sense. The intent of any text includes communicating the intended meaning.

    I mentioned in my comment quoted above that the intent of a text includes promulgating the original meaning.  But the intentions of the originators of the text might also include additional effects.  What are we to make of these secondary effects?

    My view is that any intent of a legal text or of its originators beyond the promulgation of its meaning carries no force of law.  None of the items below should be enforced based on a text

    • The subjective opinions of the authors beyond the meaning of the text
    • The poetic or artistic impact of the text
    • The expected downstream effects of the text beyond the specific language used

    Let’s take an example of the third point.  The text and context of Constitution’s provisions regarding the process of electing a President show that the expectation of the Founders was that the Electors would play some deliberative role and serve as a mediating layer between the People and the selection of the President.  Our current system does not carry out that expectation, but the modern system is not unconstitutional because it does not violate the meaning of the provisions, only the expected role those provisions would play.

    • #44
  15. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Mack The Mike:

    I recall during the Bork confirmation battle I read an article in the MSM that said that under Bork’s originalism the 4th Amendment wouldn’t cover wiretaps because listening devices didn’t exist in the 18th Century. I believed the article and thought that I disagreed with Bork’s originalism. Years later I read The Tempting of America and learned that Bork believed no such thing.

    If I understand the history of recent Originalist theory rightly, Bork’s Originalism was actually a bit unrefined, though it’s no surprise that the MSM would straw-man it in that way.

    In that history there’s a shift from Bork’s emphasis on the original intent in writing on the part of the Constitutional authors, to the original understanding in approving by the Constitutional adopters, to 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 and by Delahunty and Ricochet’s own Yoo.

    (Michael Stokes Paulsen, “The Interpretive Force of the Constitution’s Secret Drafting History,” Georgetown Law Journal 91 [2003], 1134-1148.  Robert J. Delahunty and John Yoo, “Saving Originalism,” Michigan Law Review 113 [2015], 1088-1097.)

    • #45
  16. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Saint Augustine: In that history there’s a shift from Bork’s emphasis on the original intent in writing on the part of the Constitutional authors, to the original understanding in approving by the Constitutional adopters, to 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 and by Delahunty and Ricochet’s own Yoo.

    I see these “shifts” to be obstacles to any claim that one’s interpretation of the “original intent” is authoritative. It’s a difficult task and even people who truly believe that the original intent should be their guide can differ on what that intent was.

    That said, it is still far more legitimate to stay as close as possible to the text and to the original intent of it than to simply apply some theory of a living constitution with its penumbras and emanations.

    • #46
  17. Mark Coolidge
    Mark
    @GumbyMark

    Saint Augustine:

    Mack The Mike:

    In that history there’s a shift from Bork’s emphasis on the original intent in writing on the part of the Constitutional authors, to the original understanding in approving by the Constitutional adopters, to 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 and by Delahunty and Ricochet’s own Yoo.

    I think this characterization is correct.  Original intent is no longer used by justices like Scalia who now relies upon original meaning – what the text actually says and how those words and phrases would have been understood by those at the time.

    • #47
  18. Mark Coolidge
    Mark
    @GumbyMark

    Saint Augustine:

    Mack The Mike:

    I recall during the Bork confirmation battle I read an article in the MSM that said that under Bork’s originalism the 4th Amendment wouldn’t cover wiretaps because listening devices didn’t exist in the 18th Century.

    I’ve always thought this was a mischaracterization whether one was speaking about original intent or original meaning because it misses the “it” that constitutional provisions are about.  The Fourth Amendment is not about a particular technology.

    In Kyllo v United States (2001), Justice Scalia authored a majority opinion concluding that use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constituted a “search” within the meaning of the Fourth Amendment and required a warrant.  Obviously thermal imaging technology was not around in the late 1700s but that was irrelevant.  The relevant issue was whether the use of the device was a “search” and thus prohibited without a warrant.  The case, decided by a 5-4 vote, had an interesting mix of justices on both sides.  Scalia’s opinion was joined by Thomas, Breyer, Ginsburg and Souter.  The dissent, authored by Stevens, argued the use of the device did not constitute a search, and was joined by Rehnquist, O’Connor and Kennedy.

    • #48
  19. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Mark:

    Saint Augustine:

    Mack The Mike:

    In that history there’s a shift from Bork’s emphasis on the original intent in writing on the part of the Constitutional authors, to the original understanding in approving by the Constitutional adopters, to 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 and by Delahunty and Ricochet’s own Yoo.

    I think this characterization is correct. Original intent is no longer used by justices like Scalia who now relies upon original meaning – what the text actually says and how those words and phrases would have been understood by those at the time.

    If no one minds some more vocabulary words, I think we can say that Originalism has shifted from an Originalist “Intentionalism” to an Originalist “Textualism.”

    • #49
  20. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    I think the distinction between original intent and original meaning is overblown.  As long as one recognizes that it is only the enacted intent of the authors that is authoritative then original intent and original meaning should be the same.  To see this let’s look at some very general features of communication that aren’t even specific to legal texts.   Let’s just consider any generic message.

    In any act of communication both the sender and the recipient of the message are active participants who have complementary duties to carry out if the message is to be faithfully transmitted.  Both parties must act in good faith and credit the other party as acting in good faith.

    The recipient of the message must make a good faith attempt to ascertain what the sender of the message intended to convey and the sender of the message must make a good faith attempt to make the message sufficiently clear, but for each party their duty to do so is limited by their knowledge of the other’s obligation to act in good faith.

    Continued…

    • #50
  21. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    Continued from #50

    When composing the message the sender will find that any text produced will not wholly preclude the possibility of being misconstrued, but the sender is not obligated to foreclose all possibilities, however remote, of being misconstrued.  The sender is entitled to make the assumption that that the recipient will attempt to interpret the sender’s intentions in good faith.  Thus the sender is only obliged to foreclose any ambiguities that the recipient could reasonably misconstrue in good faith given what the sender knows about the recipient’s knowledge.

    The recipient, for his part, must consider various competing possible constructions of the sender’s intended message. When doing so, the recipient is entitled to assume that the sender intended the message to be clearly understood.  But the recipient is not entitled to require that the sender eliminate any possible misunderstanding, however unreasonable.  The recipient must interpret the message with the understanding that the sender composed the message under the assumption that the recipient would make a good faith attempt given what the recipient knows about the sender’s knowledge.

    Continued…

    • #51
  22. Mack The Mike Coolidge
    Mack The Mike
    @MackTheMike

    Continued from #51

    Thus an interlocking recursive set of obligations and entitlements and knowledge of the other party’s knowledge forms the context of the message.  Part of that context is the generally accepted rules of usage shared by the language community of which the sender and recipient are a part.

    When any act of communication is successful it is because the text of the message in the context of the mutual understanding of each party’s knowledge has resulted in the content of the interpreted meaning of the message matching the intended meaning of the message sufficiently to act upon.  If the intended message doesn’t match the interpreted message – well, what we have is a failure to communicate.

    What all this means for the debate over originalism is that a successful attempt to ascertain the original intent of a legal text and an attempt to ascertain the original meaning of the text must end at the same final conclusion.  The difference between the phrases is merely one of emphasis.  Someone referring to ‘original intent’ wishes to emphasize the obligation those interpreting the text to make a good faith attempt to ascertain the intended message.  Someone using the phrase ‘original meaning’ is emphasizing the fact that those interpreting the text are entitled to assume that the promulgators of the text made a good faith effort to make the text clear given the context of the promulgation of the text.

    • #52
  23. Larry3435 Inactive
    Larry3435
    @Larry3435

    Mack, You have presented a reasonable theory, but your theory doesn’t translate very well into answering specific Constitutional questions.  The first problem with textualism is that the text of the Constitution is very general, and really doesn’t offer an answer to many Constitutional questions.  Let’s take, for example Texas v. Johnson (1989), which held that a law that criminalizes the desecration of the American flag is unconstitutional because it violates the First Amendment’s protection of symbolic speech.  You might agree or disagree with that holding, but I don’t see how you can answer the question by reference only to the text of Constitution.

    The second problem with textualism, which is often a problem for original intent as well, is that there are many issues in the modern world which the founders did not, and could not, foresee.  For example, Brown v. Entertainment Merchants Association (2011) held that video games are protected by the First Amendment.  How do you answer that question based on what the founders said, or would have said?  The founders never heard of video games, and I (for one) have no idea whether they would have wanted to ban Grand Theft Auto or not.

    • #53
  24. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Larry3435: The first problem with textualism is that the text of the Constitution is very general, and really doesn’t offer an answer to many Constitutional questions.

    True, but textualism should be the first stop in interpretation when it does offer an answer, which it often does. Ignoring the text is illegitimate.

    Larry3435: The second problem with textualism, which is often a problem for original intent as well, is that there are many issues in the modern world which the founders did not, and could not, foresee.

    Also true, but often not dispositive. The founders could not have anticipated a whole lot of things, but that’s one reason why they decided to leave most such questions to the states. So, for example, the case of video games. What would be the harm to political, economic, or social discourse if some states restricted violent or pornographic video games? Why should the first amendment be implicated in that question?

    • #54
  25. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:The founders never heard of video games, and I (for one) have no idea whether they would have wanted to ban Grand Theft Auto or not.

    I imagine a good many of them would have wanted to ban it in their respective states, and none at the federal level.

    • #55
  26. Larry3435 Inactive
    Larry3435
    @Larry3435

    Auggie and Axeman have both offered their answers to the video game question, and I’m not taking exception to either answer.  But I don’t believe that either answer reflects any form of “originalism.”  Rather, it sounds to me like both Auggie and Axeman are sneaking in their own opinions and predilictions.  And therein lies the problem.  Originalism seeks to be a bulwark against judges interpreting the Constitution as meaning whatever they think it ought to mean.  In that regard, originalism is useful, but it is far from perfect.

    Oh, and Axeman, of course I agree that if the text gives a clear answer to the question, then it should be followed to the letter.  But those cases are few and far between.

    • #56
  27. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:Auggie and Axeman have both offered their answers to the video game question, and I’m not taking exception to either answer. But I don’t believe that either answer reflects any form of “originalism.”

    Naturally, mine didn’t.  I offered it not as a premise for an argument for the meaning of the text, but as an educated guess as to what authorial intent is.  (I’m sticking with Lawson, Paulsen, Delahunty, and Yoo on original public meaning as opposed to authorial intent–although Mack the Mike’s reluctance to go that way was pretty cool!)

    But if we accept authorial intent as the locus of meaning, or as a component of meaning, or even just as a clue to meaning, then of course an insight into authorial intent helps us get to original meaning.

    Rather, it sounds to me like both Auggie and Axeman are sneaking in their own opinions and predilictions.

    What are you talking about?  Are you suggesting that my view of authorial intent is a mere opinion or that it is influenced by my predilections?  That charge weighs not a bit against Originalism; if justified, however, it weighs heavily against my having confidence in my belief that I know original meaning.

    • #57
  28. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:

    Originalism seeks to be a bulwark against judges interpreting the Constitution as meaning whatever they think it ought to mean.

    Originalism seeks to be such a bulwark like I seek to eat chocolate–because it’s nice.  But that’s not what Originalism is, and Originalists don’t accept Originalism for that reason.  We accept it because we think it’s true.

    • #58
  29. Larry3435 Inactive
    Larry3435
    @Larry3435

    Saint Augustine:  Are you suggesting that my view of authorial intent is a mere opinion or that it is influenced by my predilections?

    I am suggesting that everyone’s view of authorial intent is mere opinion.  Unless you happen to know a really good psychic.

    • #59
  30. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Larry3435: Auggie and Axeman have both offered their answers to the video game question, and I’m not taking exception to either answer. But I don’t believe that either answer reflects any form of “originalism.” Rather, it sounds to me like both Auggie and Axeman are sneaking in their own opinions and predilictions.

    I’d agree that my answer about video games doesn’t stem from an originalist perspective on video games, but rather from the originalist idea that issues of non-political speech should be left to the states when they arise, because they affect issues of health, morals, and safety (the police powers) which were not part of the original understanding of the first amendment free speech protections.

    • #60
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