The Three Schools of Originalism
A brief primer. Originalism is not a unitary category — there at least three separate originalist approaches, which obviously sometimes overlap but sometimes differ from each other rather drastically. Folks who talk about originalism, pro or con, need to know about these differences. And adherents to “originalism”, especially, need to clarify which of the three schools they consider themselves to be a part of.
….I should add that the three schools (intent, meaning, and understanding) are not terms of my own making; they’re the actual categories used by academic originalists to describe their own movement.
….For example (I’m in troll-feeding mode today!), we have Mark D. Greenberg and Harry Litman, The Meaning of Original Meaning, 86 Geo. L.J. 569 (1998), setting out the precepts of “original meaning” originalism and explaining why it doesn’t necessarily have to sanction “original practices” (practices that were in place at the time a constitutional clause was drafted). New originalism convert Jack Balkin, responding to an originalist critic of his distinction between “original meaning” and “original-expected-application” (original understanding) who says that real originalists don’t admit the difference, points to two major originalism scholars for whom the distinction is central to their work: one liberal (Akhil Amar), the other conservative (Randy Barnett). In his own originalism primer, Legal Theory Blog’s Larry Solum also differentiates between “original intent” and “original meaning”, although his definition of “original meaning” probably lies closer to my definition of “original understanding” (this is probably due to “original meaning” being the second-generation spin-off of “original intent”, but both Balkin and Greenberg and Litman’s expansion of the contours of “original meaning” have elucidated the need for it to split into at least two more theories: “original meaning” and “original understanding (or expected application)”). So while these distinctions are still being hashed out, and certainly, many partisans of one school view their approach as being the only “true” originalism, the fact remains that their are very real and salient splits that I hope will at least be helpfully marked off (though not resolved) by my post.
13 Responses to “The Three Schools of Originalism”
In your “primer” (conceited, incorrect) you again accuse others of doing what you do all the time. (projection)
Against my better judgment, I am morbidly curious, DLS: Are you with Original Intent, Meaning, or Understanding?
Against my better judgment, I am morbidly curious
Now, now. More conceit only digs your hole deeper.
> Are you with Original Intent, Meaning,
> or Understanding?
Your trichotomy is simply your own convenient construction. In fact, the three things normally are combined.
I am with “them” naturally, as my comments have long indicated. (You cannot honestly say that “red” now means, or should mean, because you want it to mean, green.)
DLS, do you ever intend to provide evidence for your claims? I personally would like to know HOW David is incorrect if you have the time.
Don’t forget to cite !
Correct statements of fact aren’t “claims” (or “assertions,” a word I see misused frequently), and I owe no evidence or proof any more than if I say the world is round, rather than flat.
Let’s start off with an obvious caveat: This post is worthless.
Even this is incorrect.
In reality, the vast majority of folks view the propriety of a legal decision solely on the basis of its results.
He is projecting his desire for results he wants, through left-activist, illegitimate, court rulings, as he has demonstrated repeatedly, onto others incorrectly (as well as wrongly). Meanwhile, people who object to the impropriety of many court rulings do so because of misconduct by the judiciary. It is rare that an undesireable result is reached through sound legal reasoning, that someone can get away with wrongdoing or an unpopular result occurs, or something desired is struck down, merely on a legal technicality. (Normal people resent this while they accept this.)
Even insofar as people do actively identify with a judicial theory, they pick it based on what they think will give them most of the results they want, most of the time.
He is projecting — this is what he and people like him actually seek.
Originalism is no different.
False. Those who seek originalism look to what was originally sought, not at the desireability or undesireability of the results themselves.
And the quote he relies on is also false, and perverse, in that it claims the opposite of what is true. Of course, selection of this quote by him may be another case of projection –or just that he and his fellow activists presume everyone else is as they are — their choice of one phrase below is especially revealing.
Voters are not attracted to the discipline or jurisprudence of originalism; they are drawn instead to its capacity to reshape Supreme Court precedents into a “living constitution” for right-wing convictions.
This, to be clear,
False
is true for how virtually everyone who doesn’t have a J.D. (and a fair amount who do) comes into their legal position, regardless of what it is.
False. Many people are ignorant or indifferent; those who examine the issues and who seek originalism obviously do not simply work backwards from what they want, as activists do, and plenty of activists in law seek activist courts to achieve their leftist goals.
the fact that the unitary category “originalism” actually is splintered into at least three different interpretative approaches
In reality they intermesh; there are no sharp divisions.
at the very least someone who claims to be an “originalist” needs to clarify which of the three schools they are an adherent to.
False. No such obligation exists. There is no separation into three (or more) “schools,” arbitrarily or otherwise devised, no matter how convenient it may be (if for no other reason than to psychologically diminish in people’s eyes what is one larger “school”); it is merely sufficient to explain one’s position, as needed drawing from this or that of what may be seen as but which in no way definitely are or must be separate “schools.” In reality, they intermesh.
Original intent argues that a law, statute, or clause should be understood as doing what its drafters intended it to do.
The other so-called “schools” are simply additional elements of the entire scope of this most sound form of legal construction, which is that the written law is the written, expressed intent of those who wrote the law — as understood those who enacted it into law (what the authors and the legislators seek, not why the legislators seek it — see below).
The 13th Amendment was meant to bar slavery, but its framers did not demonstrate any intention for it to bar segregation (as plaintiffs alleged in Plessy v. Ferguson). What could be difficult about that?
Well, lot’s [sic] of things, actually.
False, obviously. The question of civil rights and related matters (discrimination, for example), are totall separate and distinct from the abolition of slavery, which is (truly) clear. There’s nothing wrong with saying that original intent, and law interpreted that way, means what it says, says what means, according to what was said and sought by those who wrote and enacted the law. It’s what they want that establishes what it should be understood to be.
intention is often unclear
No, it normally is not unclear, that of the authors — they can always be asked and normally will say what they want, and why, or they stated why and what they said or wrote can be consulted. The intentions of the voters (why precisely they are voting to enact a law) are not relevent here. It is how they understand the intentions of the authors that matters. Both the authors and the legislators are concerned with the same thing insofar as original intent (or whatever other name is used instead): what the law is meant to mean, what is being sought. It has nothing to do with why a legislator would enact the law. Introducing the intentions of the legislators is irrelevent and in fact is nothing but a word game (a cousin of equivocation).
Of course, many laws do not have such obvious analogues to the proceedings of foreign jurisdictions,
This was bizarre. Untentional display of activist tendencies?
Would the population have understood the first amendment to protect obscenity in 1795? Would American’s [sic] have seen school segregation as unconstitutional in the immediate aftermath of the 14th amendment (would they have thought that a proto-affirmative action program had to be barred?).
The activism is showing again in the choice of words here.
There is no qualification – those passing the 14th amendment were seeking the voting rights of blacks, not worried about discrimination of all kinds. And that was the basis for continued discrimination until this issue was finally resolved legally through additional legislation.
tIn contrast to original meaning [, ]then, original understanding looks at the policy in question, rather than the legal principle surrounding it.
No — at issue here is that the law is to mean what those who wrote and enacted it understood it to mean. It is a fundamental legal principle (of construction).
Original understanding probably gets closest to the prime virtue of the originalism movement, which is avoiding “nobody saw this coming” moments.
This is not the prime vircue of the originalism movement. The prime virtue of the movement is that it honors what was intended and sought by those who wrote the law and enacted it. It is honest, rather than dishonest or uncontrolled (and destructive to real law and rule of law, which is true about legal activism, which substitutes politics for law). It does provide a basis for resolving most “unforeseen” cases (of new technology, for example; not newly creative misuse of the courts by wrongful references and dishonest “interpretations” of existing law).
But on the other hand, it can lead to results wildly at odds with the text it purportedly emanates from. The Alien & Sedition Act, for example, passed very soon after the ratification of the 1st Amendment, prohibits conduct that is unquestionably “speech” and well within the confines of the Amendment’s protection.
The Alien and Sedition Act did not spring from the First Amendment or from the Constitution or from any other “text.” That law was widely known to be wrong, as was the intention (suppression of political opposition, including constitutional rights). That law and its wrongfulness have nothing whatsoever to do with originalism.
Original understanding also runs into problems in that it assumes the populace had a well-defined idea about how the clause would apply in every case — and many cases are unexpected.
No, it doesn’t. What it does do in unexpected cases is to provide a framework, hopefully assisted by one or more precedent cases that are relevent, for judging the unexpected cases.
I suspect that most cases that arise under most amendments deal with issues that most people didn’t have an opinion pro or con on at the time of ratification.
No, in modern times the amendments are involved because the amendments are wrongly referenced, with the abuse of the “free speech” and “equal protection” clauses of two amendments the most notorious nowadays, whereas, for example, in the past, the interstate commerce clause in the body of the Constitution was often abused, while even today “cruel and unusual punishment” is abused by death penalty opponents (often supposedly on behalf of a specific individual).
“classic” legal decision-making, which is supposed to abstract itself from the particular policy in question and instead apply generally applicable legal principles to resolve interpretative issues.
Originalism is one of the oldest canons of construction in existence, and as general a principle as can be found, applying not only to the Constitution of the USA and state constitutions but laws of all kinds and other legal documents. What is meant is what those who wrote and made the document official wanted it to mean. Their intentions were put into writing.
It goes without saying
(which is then said)
that I believe there are inherent weaknesses within the originalism project as a whole that affect all three schools: from the “there’s no original evidence for originalism” gotcha,
There’s nothing in that phrase.
to the fact that people are fragmentary and don’t understand the same texts in the same way (which is why we argue about these things in the first place),
Nope — it’s what those who wrote and enacted the law understand the intentions of the authors to be that counts
to the point that at least some portions of the constitution appear to be written precisely to be temporally variable (e.g., what’s “necessary and proper” to carry out legislative functions, Art. I, Sec. 8 at one point in time may not be in another).
This fails to argue the “living, breathing, malleable, Silly Putty” non-argument. The “necessary and proper” clause refers to implied and adjunct powers to carry out what is granted to the federal government to do, for example. (If a Post Office can be created, penalties can be created as well for interference with or attacks on postal facilties or personnel, for example.) This clause does not grant the federal government additional broad powers (no more than the “general welfare” clause, a qualification on the power to tax, does).
Now, what was not foreseen (automobile travel, air travel, etc.) must be somehow legislated (if legislation is of value or is proper), but it should be done so in a way using what is already in the law, and was sought by those who wrote and enacted the law, as a guide, along with relevent precedent cases.
And, to reiterate the point I made above and in my Madison’s Tomb story, very few conservative adherents of originalism would continue to do so if originalism wasn’t seen as legitimizing their preferred political ends.
Wrong again — probably more projection here.
It is valid to argue that if more conservative activists thought they could get their way through judicial activism rather than originalism, they would choose activism, but that is obviously a completely different thing.
Don’t forget to cite !
Actually, citations are not required to support obvious statements of fact — demanding them is just petty game-playing (if not stalling for time if one cannot provide any serious counter-argument), particularly when what I write is not only correct but ordinarily fully self-explanatory (ignorance is not assumed, I concede). The first thing anyone who questions what I write about something written by someone else can do is go read it themselves and form their own view on it.
I did choose to spend a few minutes responding to the earlier request, even though it was unnecessary.
First of all, DLS, thank you for taking time to provide some evidence for your statements, despite the fact that you claim (word choice intentional) that no evidence is needed for knowledge, belief, or even communication with others.
One of our miscommunications that prompted my response is that I missed David’s link back to his blog and only saw what was posted here. On here, David provided actual references to various originalists claiming different things. Here is evidence that what originalism means is actually a whole set of concepts. You then chimed in with a simple “false” line like you enjoy doing with personal attacks on David, like you also enjoy doing, and seemed to claim that originalism was in fact a unitary legal philosophy even when facts were sitting there on the screen that it was not. I wanted to know why you said so.
The miscommunication then is that you were largely responding not to the simple paragraph here on TMV, but to a much larger post, and it turns out that you do have evidence for some of what you are saying. That’s very beneficial to those of us who like to learn from others on this site.
Now, let’s tackle your lead off statement:
“Correct statements of fact aren’t “claims†(or “assertions,†a word I see misused frequently), and I owe no evidence or proof any more than if I say the world is round, rather than flat.”
Indeed brute facts are brute facts and remain so whether or not we believe them and whether or not we have evidence for them. There may be a certain number of stars in the universe at this instant and that is a brute fact. (The problem we will run into is when something is still a star and when not, but let’s ignore that. The point is that the universe is the way it is, no matter our beliefs or evidence.) I believe the error you are making is in equivocating over the words “fact”, “belief” or “claim” or “assertion”, and “knowledge”.
If I were to throw out an exact number of stars in the universe right now, I may or may not be right about it. Whether or not I am right is a fact. But when I give you the number, I am not providing a fact, I am providing a claim or assertion about a fact. I think that the number of stars is so-and-so. You may wish to know if what I am claiming is a fact or not and so you might ask me why I say that, i.e., what the evidence is.
Let’s say I cannot provide any evidence at all. In fact, I completely made the number up off the top of my head. The number I made up could still be true just by chance, it could be accurate; however, you’d have no good reason to believe it. In such cases, it is customary to say that I have a correct belief, but I lack knowledge, because I have no evidence for the belief.
One reason we want to make this distinction is that, as the cliché goes, even a broken clock is right twice a day. For two moments every day a broken clock gets the time exactly right, but that’s only because it must, and not because it can actually tell time. If I actually want to know what the time is in general, I’d much rather have a functioning clock that has a reason for the time it is giving, even, depending on my function, if it’s always 3 minutes off.
When you make claims about originalism, they may or may not also be facts out in the world. You clearly think that you have knowledge of those facts, meaning you think, based upon reading of originalists and general judicial philosophy, that your beliefs are correct and justified. However, no one else knows if you are right or not. We don’t know why you yell out the word “false” and claim to have established something. Those of reading your words need to distinguish the broken clock who might have it right by chance and the functioning one who has evidence, because, if we believe in a reasonable world, we think that complete guessing is not as likely to be correct most of the time as is a statment based on knowledge.
Giving up the idea of evidence when someone states something just because it is or is not a fact out in the world would be like going into a court room, having some one declare “guilty” for who knows why, and walking out. The person might have stated a fact, but no one, perhaps even the person who stated it, knows.
Of course, as always, this is all outlined in Plato, particularly the Thaeatetus.
A bit later I realized DLS could be following a different approach with this whole evidence thing, meaning he/she believes it is best to assert something and then let others go do the research to find out if the assertion is a fact. DLS seems to sort of suggest this idea in his “citation” comment. We can always go do our own work to see if what he says is true. There’s a certain educational merit to such an approach. People always remember facts they discover on their own much better than ones they are just told of, and it has a lot of intellectual merit to do one’s own work.
The practical problem, of course, is that people cannot follow up every statement anyone makes. If a crazy guy shouts at me about aliens and my mother, I’m not going to go investigate the notion, though it could be correct. Instead, we follow up on the statements that are of most interest or that seem to have the most merit. So when reading about judicial philosophy, I know David’s background and arguments, as he presents them, and so can decide whether they are worth my time to pursue further.
If we completely went to a “I say it’s a fact, go find out for yourself” model of argumentation, then we could end up with the following scenario:
Einstein: “E=mc2″
Scientist 1: Really? Wow, how’d you figure it out?
Einstein: For you to understand, you must make the discovery on your own. Bye.
Scientist 1: Hm. You’re right. Every single person the earth should learn every single truth ever discovered again independently! Sharing evidence is for the birds.
I’m in awe of Pacatrue’s patience and industtry
I read the first part of DLS’s statement, got the message that ‘it’s true, because I say it’s true”, and gave up on the rest. Somehow.. I lost interest/
It’s not that. It’s a matter of responsibility, of doing one’s own homework before engaging in useless arguing, typically with ill intentions (because one doesn’t like how things really are). Every case can be (normally, uselessly) argued to be a judgment call, but almost all the time it is a case concerning something that somebody should already know.
Related to what you said, too, is (again) that (if others haven’t already) others are free to read, for example, what David writes, and see it for themselves. (Better late than never…)
He joins others in packaging and attempting to rationalize his far-left politics and delusions as legal arguments. He has such a strong attachment to his politics he projects what he does onto others.
* * *
No surprise from you and often from others when I don’t unintelligently conform to your group-think. It’s not what you want to be told.
Well, you were civil and non-elitist about it.
That’s not what I have claimed. Rather, there is a distinction between what is incomplete or truly confusing, or unclear, which merits explanation or support, and what is obvious, or what should have been read and learned already. So much argument is merely a waste of time by someone who’s been found to be and called wrong, and demands for citations are so often on-line another useless tactic of losers. This is why I rarely provide citations (the demands for them deserve little or no respect), even where they would do more justice to my own statements than my statements themselves (I am hinting at quality issues here!). Meanwhile, in a number of my remarks, I have at times provided some citations in the form of links to embellish (and at times, yes, to explain) what I am writing.
Some of this is a matter of style, and some of this is a reaction to frequently poor behavior I observe on-line and choose not to join.
If you begin to cite, they’ll demand you cite more or play games with the citations you make. If you begin to cite and then you stop citing, they’ll attack you for not citing all the time, not enough; the expectations are ratcheted upward, only, for what amounts to a favor being done for others as well as a useful tool for elucidation otherwise.
It’s a general tactic that is similar to what is done with one specific kind of citation, namely studies. “Do you have any studies?” “Can’t you cite more studies than that?” et cetera.