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Constitutional Change: A Parable
On 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Objection 1: The original meaning of the Constitution is outdated.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.)
Published in General
To take another example, the Second Amendment protects an individual right to keep and bear arms. Yet I’m sure that almost no one would say that it protects the right of a private individual to have a nuclear weapon or an F-16 fighter plane, or an Abrams tank. On the other hand, I think that most of us would agree that the Second Amendment does protect the right to keep a revolver or shotgun for home protection. Somewhere in the middle – somewhere between an M2 Browning 50 Cal machine gun and a semi-automatic rifle – a line must be drawn. Originalism does not help us to draw that line.
I suppose one could say that the Second Amendment only applies to those weapons that were used by militias at the time of the adoption (i.e., muskets), but I don’t think many people would find that answer satisfactory. Or one could say that the original intent was that the Second Amendment was to apply to any weapons that would be used in the event of war (which is, after all, the point of a militia). But that would not exclude the nukes and the tanks. I don’t see any realistic way to draw the Constitutional line based on originalism. It requires judgment, experience, and common sense to apply the Second Amendment.
What about needlers, phasers, and X-Wings? And tek bows? That’s what I want to know.
(More serious remarks in a moment.)
So what? 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.
Your premise appears to be that the Constitution leaves some questions undecided. I grant it happily.
Your appear to have two conclusions: that to decide these questions is thus to decide what the Constitution means, and that judges ought to be the ones to do the deciding.
How either conclusion derives any support from that premise is a mystery to me. For my part, I reject the first conclusion. I don’t reject the second, though if you say that only judges have that job we will disagree.
I shall go farther.
The fact that the Constitution according to its original meaning leaves many questions unanswered supports the opposite conclusion: that the business of answering these questions is not the business of Constitutional interpretation per se, but the business of legislating within the parameters set by the Constitution.
My take on this objection to originalism is that it’s true, but misses the main point of having an originalist orientation, which is, the further one strays from the original meaning (textual or historical) the less legitimate is the interpretation.
Is human sacrifice protected by the free exercise clause? No clues in the text, but do we have some confidence what the people of that time would have said? Would they have approved of Griswold and its progeny, including abortion and single sex marriage, let alone compelling a baker to bake a cake for wedding of homosexuals? Would they have wanted the ordinary person of today to be as well-armed as the criminals he must protect himself from or so well-armed that he could wage a private war? Would they have agreed that the federal government can mandate that every person must buy health insurance?
Definitive answers? No. But thinking about the meaning that the drafting generation assigned to the constitution they ratified can provide confidence that our interpretations are not altogether illegitimate, confidence the “living constitution” advocates cannot have.
Auggie, that just makes no sense. The phrase “within the parameters set by the Constitution” means that you have to know what those parameters are. You cannot say “well, the Constitution doesn’t answer the question, so Congress can do whatever it wants, provided it doesn’t violate the Constitution.” That is just completely circular, and has no meaning. Seriously, no meaning.
The Free Exercise clause either means something, or it doesn’t. If it means something, then there are some laws that it prohibits Congress from enacting. And originalism doesn’t tell us what laws those are. That is the beginning of the inquiry, not the end of the inquiry. In the real world, you can’t just say “what is truth?” and wash your hands. The difference between law and philosophy is that in law you actually have to answer the question. You might get the answer wrong, but you can’t just wash your hands of it.
I don’t think we have much of a disagreement. But I do think that what you suggest leaves the door open for a very subjective evaluation of Constitutional meaning. Not that subjectivity is absent from existing Constitutional jurisprudence. Sandra Day O’Conner, for example, seemed to decide cases based on gut reaction, rather than any principled application of rules. Which is why I think she was the worst Supreme Court Justice of my lifetime.
Let me illustrate the problem with a more modern example. People sometimes ask, “what would Dr. King have thought of modern day affirmative action”? On the one hand, you could cite his hope that his children (not his great great grandchildren) would be judged by the content of their character. On the other hand, there is ample evidence that Dr. King did not believe that the problems of black America were resolved by passage of the 1964 Civil Rights Act, even if that statute ended de jure discrimination. So in trying to divine what Dr. King would think about a current issue, there is a lot of room for subjectivity. How much more subjective does it get when you try to divine the thinking of men who lived 250 years ago?
Naturally, one does need to know the parameters. I said not otherwise. By definition, the parameters are what we do (or at least can) know–what we do (or at least can) know the original meaning of the text to entail–law the meaning of which is known (or at least knowable).
Within those parameters, a question left unanswered by the Constitution is a question the answering of which is not a matter of Constitutional interpretation, but of legislation within the parameters set by the Constitution.
Well, that has no meaning. Fortunately, such a thing never crossed my mind. You’re misreading me.
What you can say, what does have meaning, and what I meant, was: Well, the Constitution doesn’t answer Question X, so Congress can do whatever it wants, provided it doesn’t violate any Proposition Y which in the Constitution.
[Edited slightly for clarity.]
Going back to your example in # 31, we know some parameters: On one side, the Constitution protects my right to own a handgun, and we can see that on the opposite side there is no such protection for owning a nuke. There’s a huge region in the middle where the Constitution doesn’t tell us anything, and it is for legislation to draw the line.
Of course, there are gray areas between the parameters on either side and the middle region. Drawing lines in those places is nothing but Constitutional interpretation.
But note well: Drawing those lines involves answering the question what the Constitution means.
In all cases, answering the question what the Constitution means is Constitutional interpretation, and vice versa. In all cases, where the Constitution does not answer a question, answering the question is not the business of Constitutional interpretation–and vice versa.
If you’re focusing on those gray areas between the parameters on either side and the middle region, and if you’re suggesting that Originalism doesn’t answer those questions, then, like I said in # 26, you’re correct.
And Originalism doesn’t need to answer those questions, and it isn’t meant to. Answers to those questions are to be found in a good knowledge of the relevant history, linguistics, political theory, economic theory, philosophy, or law.
If you say that the Constitution doesn’t answer a particular question concerning its own meaning, then I think there are only four possible replies:
I’ve already given my major reasons for rejecting the fourth option. I consider the other three on a case by case basis.
I agree that we don’t have much of a disagreement. I also agree there is going to be some subjectivity in ascertaining original meaning.
But, applying original meaning, it would be obviously wrong and thus illegitimate to claim, as the current court does, that the Constitution protects abortion, homosexual marriage, and Obamacare, to name three of many aberrant decisions. It is clearly wrong to say that the Constitution, as originally understood, doesn’t approve of capital punishment.
That is, some cases depart so far from original meaning that there is no room for subjectivity. It is amusing (is that the right word?) that the Court doesn’t care.
Take the case of birthright citizenship. The threads on that subject showed that there are cases on the edge of interpretation, in which both sides can marshall arguments to support their interpretation. Simply going original won’t answer the question, but doing so, whichever way it comes out, is more legitimate than applying a meaning completely disconnected from the original meaning. In the latter case we are being ruled by the robed nine.
Wasn’t the Tenth Amendment intended to provide the “Proposition Y” that you are looking for?
I know that there are two dozen ways in which Congress has already gone way beyond that limit, and been upheld by the Court on very tenuous grounds.
Perhaps this whole conversation and the Constitution itself are meaningless.
In some cases, yes!
I wasn’t really thinking of specifics, but I suspect a large number of Propositions Y are found in Lawson and Epstein vs. Paulsen.
MJB, I have to say the Tenth Amendment is not “Proposition Y,” as Auggie calls it. The Tenth Amendment protects the power of the states in a federalist system. The First Amendment (among others) protects the rights of individuals. And since the 14th Amendment, the Bill of Rights protects individuals against First Amendment violations by the states as well as Congress. Yes, federalism is an important principle established by the Constitution, but it is not the only principle established by the Constitution. The Constitution also protects individual rights, including an individual’s freedom to “freely” exercise his religion.
I should add that what Auggie calls “Proposition Y” is what we lawyers call “the law.” I don’t know why Auggie comes up with these names that suggest that there is something novel to the proposition that the Free Exercise clause draws a distinction between what the government can and cannot do, in passing a general prohibition of conduct which conduct is also part of a religious ritual. That’s the whole question here, and calling the answer to that question by a mysterious name like “Proposition Y” adds nothing to the analysis.
Auggie’s “Proposition Y” is (in the real world) a rule of law established by the Supreme Court. In the case of the Free Exercise Clause, that rule has changed over time. Initially, the Court reasoned that the FEC protected only religious belief, not conduct, and on that basis upheld a law prohibiting polygamy. Reynolds v. U.S. (1878).
In Sherbert v. Verner (1963), the Court held that the FEC does protect conduct and that the test (i.e., “Proposition Y”) was whether the government had a compelling state interest in enforcing the challenged law. In that case, the Court struck down a law that denied unemployment benefits to a woman who was fired because she refused to work on the Sabbath.
In 1990 the Court reversed itself again, and held that a government burden on a religious practice is allowed, so long as the law in question is generally applicable and does not target a specific religion or religious practice. Employment Division v. Smith.
Personally, I prefer the compelling state interest test as “Proposition Y.” But that’s not surprising, since I am a libertarian and favor strong protections for individual rights against government interference. I would like to hear what Auggie thinks the test ought to be. But I want to emphasize that merely stating that there must be a test, and calling that test “Proposition Y,” does absolutely nothing to advance the analysis. Of course there is a test. The issue is, what test should control?
Now, a couple of applications of the state of the law under the Free Exercise Clause. Does a wedding cake baker have the right to refuse service to a gay couple? Almost certainly not, since laws prohibiting discrimination in public accommodations have a legitimate purpose and were not adopted to target a religious practice. In fact, public accommodation laws long pre-dated the gay marriage issue.
An interesting question is whether the FEC protects the right to home school students. The Court held that it did protect this right against truancy laws in Wisconsin v. Yoder (1972), but that case was decided under the then-applicable compelling state interest standard of Sherbert. Because the Court later rejected that standard in Smith, it is now unclear whether the current Court would uphold a FEC challenge to a truancy law that required all children to attend a licensed school.
I think MJB and I were talking about more general principles. With respect to the First, I have no objections to your reasoning for not considering the Tenth to be a Proposition Y.
The names don’t suggest anything of the sort. I introduced those terms because you couldn’t understand me and said in # 36:
There, you presumed that, in # 34, I was considering the known meaning of the Constitution and unknown meaning to be the same propositions. So in # 38 I rephrased using separate names for those meanings: Propositions X and Y.
If you can understand me without the use of these terms, I’m happy to discard them.
I disagree, being an Originalist. I introduced the term “Proposition Y” as a variable for any known original meaning to the Constitution. Such a law is, by definition, not established by any Court.
Now the Supreme Court crafts rules for determining what’s Constitutional, and you helpfully describe some of the rules it has used. Speaking as an Originalist, I consider these rules illegitimate if they purport to create Constitutional meaning (rather than, for example, simply apply a test based on a known original meaning or disambiguate among more than one plausible understanding of original meaning).
Which rule do I think is best for this particular portion of the Constitution? I have no opinion at the moment, and it’s a bit off topic in any case.
No one ever said using the name “Proposition Y” for anything was meant to advance our understanding of the Constitution; it was just another failed attempt on my part to communicate with you. And naturally there must be a test, but again, and for the record, the term “Proposition Y” as I introduced it cannot be used of such a test.
Off topic? No, the test is the topic. I raised the question of how the Free Exercise Clause applies to a law of general applicability that restricts a religious practice, precisely because there is no clear answer in any originalist interpretation of the Constitution. Either the FEC means something, or it means nothing. If it means something then there must be a line drawn (a test) between what Congress can do within the parameters of the Constitution (to use your phrase) and what it cannot do.
The problem, Auggie, is not that you are failing to communicate. The problem is that you have no coherent position to communicate. Even on the threshold question of whether the FEC means anything at all, you have not taken a position. On one hand, you have said that absent an originalist meaning, Congress can do whatever it wants (i.e., the FEC means nothing). On the other hand, you have said that Congress must stay within the “parameters of the Constitution” (i.e., the FEC does mean something, but you haven’t said what it means). So I repeat, I would be interested to know what you think the test is.
This is a topic not brought up in this conversation until your comment # 45 or # 44, and a question entirely separate from the question whether Originalism is true.
You are of the opinion that this question exposes a region of Constitutional meaning of which the Constitution does not inform us. I’ve addressed this already–in # 40 as well as # 48. But I can address it again.
Does this question expose a region of Constitutional meaning of which the Constitution does not inform us?
Perhaps not—if the specifics of application of the original meaning which we do know are themselves not included in the original meaning, and if this question addresses those specifics.
But perhaps—if those who ask that question in order to know the meaning of the Constitution are simply ignorant of the relevant history, linguistics, political theory, economic theory, philosophy, or law, or if the original meaning was never clear to begin with or has been hopelessly obscured by the passage of time.
Neither of these possible affirmative answers would constitute any sort of threat to Originalism.
Nor does my lack of a clear understanding which of those three possibilities applies in this case have any bearing on Originalism or anything else I’ve talked about in this thread or anywhere else.
It really is off topic.
Your need to ask the question is, perhaps, precisely the relevant topic. I am very nearly certain that you don’t understand me.
Whether the problem is you or me, it almost certainly lies somewhere in the communication category.
Wrong again. Now why do you think I actually lack a coherent view? I wonder if you’re still working off of the misunderstanding evident in your # 36, exposed in my #s 38-40.
Not explicitly, no. Until now that seemed no more necessary than taking a position on the existence of trees. For the record, I believe that both trees and a meaning of the Free Exercise clause exist.
Entirely false. I believe you are operating on the same misreadings of me. Please review #s 38-40. What I said (first in # 34) was this:
A question not answered by the original meaning of the Constitution is a question the answering of which is not the business of Constitutional interpretation, but of legislation; and any such legislation is valid provided that it violates nothing which is part of the original meaning of the Constitution.
Auggie, you have knack for raising an issue, but never getting out of the starting blocks in analyzing that issue. Maybe that works in philosophy (I’m pretty sure that it does), but not in law. In law you posit an answer, you test it against various real world and hypothetical situations, and you describe it with clarity. That is what makes for good legal analysis. Simply saying “I believe in something called originalism, but I can’t tell you exactly what it is or how to apply that belief to particular Constitutional issues” is very bad legal analysis. Laws banning polygamy, or home schooling, or unemployment benefits for people who refuse to work on the Sabbath either do or do not violate the Free Exercise Clause. It isn’t good enough to say, “well, I have no idea, but I believe in originalism.” And it’s not just the FEC. I could make the same point with most of the provisions in the Bill of Rights.
I’ll take a stab at this question.
The FEC means something, keeping in mind that every provision of the Constitution comes with this implicit qualifier: …Unless there is a good enough reason.” So government cannot prohibit free exercise unless it has a good enough reason.
It is not in the nature of a constitution to lay out all those “good enough reasons,” so they have to be determined on a case-by-case basis.
At one end of the spectrum it’s clear from the original understanding (not the text itself) that government cannot punish anyone for believing in a certain set of religious ideas, or for worshipping in ways that have no effect on anyone other than the worshippers themselves, or just to make life miserable for a minority religious group for no reason other than they are disfavored by the majority.
At the other end of the spectrum the original understanding is clear that religious belief will not protect serious wrongdoing from being prohibited. That would include kidnapping and murder for religious rituals, incest, or polygamy. I’m not necessarily able to provide authority for these assertions, but rather I’m confident that the Court, if it chose to apply originalist interpretation, would agree.
Well, I do spend more time laying a good foundation than building much on it. That often does work in philosophy. I also prefer it in conversations such as this; why state more opinions to someone who so manifestly misunderstands and eisegetes the ones I’ve already given?
And why shouldn’t this be ok in legal theory? Legal theory is all I’m talking about (not legal analysis, if I understand your use of the term rightly). Why should an investigation of legal theory have to state many, or any, specific meanings of the Constitution in order to be a decent investigation?
What should be required for an investigation of legal theory to be good is merely that it can lead to specific meanings.
Originalism can lead to specific meanings. That’s enough. If you think I should say more about how, I refer you to my remarks on an earlier thread. (“The original meaning is found by attention to . . . .”)
Continued:
(Continued)
Now if I myself were so lacking in the requisite knowledge of the relevant history, linguistics, political theory, economic theory, philosophy, or law that I personally could find no specific Constitutional meanings, that would be no objection to Originalism.
Yet you have objected that I personally have not yet done it with one particular meaning of the Constitution. And you suggest that there are various other particular meanings that would, thus, refute my position somehow if I failed to provide their meanings.
You yourself have said that both in this thread and in another that you have no objections to Originalism when the original meaning is available. You need not provide specific examples of Constitutional meaning in order for that view to be a solid one–much less specifics of any question I might happen to ask you about the Bill of Rights.
Well stated. The question is, as you say, what is a good enough reason. As I mentioned, I think it should require a really really good reason (compelling state interest) rather than a merely rational reason. What say you?
I agree, and that’s why I think RFRA is a good idea. After all, religious freedom is a fundamental right, and so a compelling interest should be required.
But no turbans in the air force. :)
Yes, I adhere to original meaning, but only where there is an original meaning. And by the way, I consider appeals to “history, linguistics, political theory, economic theory, [and] philosophy” to be so subjective and open-ended that you had might as well invoke “the living Constitution.”
The problem with originalism is that it is incomplete. It does not tell us the meaning of many Constitutional provisions. My question is, “what do you do then?” Your answer seems to be, “I don’t know and I don’t care.” That’s good enough for Ricochet, I suppose, but I wouldn’t recommend it as an answer on a law school exam.
Same here. Do you consider this some disagreement between us? I’ve said this before, in # 34 for example.
It seems the problem is, once again, your skepticism.
This could be meant in at least four ways. It could mean . . .
Originalism is incomplete in at least the first three ways. I’ve said so–of 1 here, of 2 here, and of 3 here (as well as here).
If you mean that Originalism is incomplete in the fourth way, I disagree, but I’m happy to see any relevant evidence you might have for that view.
My answer has never been anything of the sort. (However, I did give an answer somewhat like that to an entirely different question–to which it was a good answer!)
This particular question you ask is explicitly about the meaning of the Constitution–not a broader question about things the Constitution doesn’t tell us. I believe this is actually the first time you’ve asked that specific question, not the broader one.
Nevertheless, I’ve given my answer to it already, in # 40 and elsewhere. If Originalism doesn’t tell us the meaning of a Constitutional provision, we either pass an Amendment to clarify the Constitution, or we do our best to find the meaning by studying the relevant history, linguistics, political theory, economic theory, philosophy, or law. (The business of finding that meaning is, like I said, the business of Constitutional interpretation; and, naturally, the Courts have a part to play in this endeavor.)