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  • “The Two Discourses: How Non-Originalists Popularize Originalism and What that Means”

    Posted by Jonathan on March 28th, 2016 (All posts by )

    Seth Barrett Tillman:

    Non-originalists communicate in two different discourses.
    One discourse is the mode of truth: it is the mode they reserve for their sophisticated clients and legal briefs, for their colleagues and students. In this discourse, non-originalists critique originalism as …

    1. Wrongheaded or false because the Constitution is not prolix, it is only an outline, and the gaps must be filled in by each generation;
    2. Wrongheaded because the Framers’ and Ratifiers’ intent is not discoverable;
    3. Wrongheaded because different Framers’ and Ratifiers’ intent, although discoverable, was not unified;
    4. Wrongheaded because original public meaning is not (now) discoverable (e.g., the Constitution is too old);
    5. Wrongheaded because during the framing era and during ratification there were a multiplicity of original public meanings;
    6. Wrongheaded because judicial rulings and precedent are the superior means through which to determine the meaning of the Constitution;
    7. Wrongheaded because judges, academic lawyers, and lawyers are not good historians;
    8. Wrongheaded because the Framing-era and ratification lacked democratic bona fidés by modern standards;
    9. Wrongheaded because we should not be ruled by the moral norms or the dead hand of the past; and,
    10. Wrongheaded because originalism gets the wrong (e.g., conservative or libertarian) results.

    The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public … non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.

    Lexington Green adds:

    You are restrained in your condemnation of this despicable dishonesty.

    The public has very little understanding of law, the Constitution, the legal system, lawyers, courts or anything else that people like us think about all day long.

    There is nonetheless a vague, inchoate sense that there something called a constitution, and it is in writing, and most people who think they know anything about it mistakenly believe that it says that all men are created equal, and that it protects our rights, whatever those happen to be, and that the government has to do what The Constitution says.

    If you were to tell these people, well, actually, we law professors and judges and lawyers have figured out that you don’t actually have to do what the Constitution says, because … it won’t matter what the “because” is. The typical American will respond with something along the lines of “are you fucking kidding me?”

    My seat of the pants guess is that between between 1% and 5% of the people in this country have any idea what has been going on with the U.S. Constitution in the courts in the last 50 years.

    These guys are being smart not publicizing the reality. If Joe and Jane American voter knew what was going on they would cut the funding for these people.

    Read the whole thing.

    (See also this post by Lex from 2008.)


    20 Responses to ““The Two Discourses: How Non-Originalists Popularize Originalism and What that Means””

    1. Robert Schwartz Says:

      Jonathan be cautious about quoting Tillman. You are just going to upset Dearieme.

    2. PenGun Says:

      I am kinda baffled by this, not unusual.

      We have Originalists who believe the constitution is a sacred document, that is inherently perfect and needs just a few tweaks to make it germane.

      The Non Originalists believe it’s an important document, that although foundational, can be modified extensively to fit modern life.

      If I have that right, I will point out the Originalists position is much easier to sell. In a similar way, religion is a useful vehicle, again as it’s simple and does not require great discrimination. In these situations, one just need to believe. As we know from current events, people can be led to believe almost anything.

      The Non Originalists position has to be much more nuanced and is frankly complicated. Much harder to sell.

      That we quickly get to “despicable dishonesty” as a description of one side by the other, I am intrigued. I may be completely wrong but it looks like the thrust here is to demonize the Non Originalists as they too recognize how hard it is to sell their nuanced crap and use the methods of the Originalists to do so.

      Come on folks, it’s the American way.

    3. Robert Schwartz Says:

      PenGun: Ain’t you a Canuck?

    4. Jonathan Says:

      As we know from current events, people can be led to believe almost anything.


    5. Michael Hiteshew Says:

      For example, several days ago, some 350 legal academics signed a letter calling for Senate hearings on the Merrick Garland nomination. My understanding is that this letter was circulated by the über-liberal Alliance for Justice. What did the letter say?

      The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.

      How many of these scholars sent letters to Harry Reid demanding he pass a budget, or to Hillary demanding she follow the law as written WRT classified information, or to Obama demanding he follow the intent of immigration law? None, would be my guess.

    6. dearieme Says:

      Contra Mr Schwartz, Dearieme is not at all upset. Dearieme wonders whether any non-originalist position can boil down to anything other than “do what my cronies and I tell you”.

      Unfortunately Mr Schwartz revealed recently that his interpretation of the Constitution is “do what Mr Marshall and his cronies told you” which seems to me to be only a little better – an alternative form of arbitrary rule since on the issue then in hand, Mr Marshall and his cronies had (apparently) justified their decisions in terms neither of reasoning nor evidence. Or, at least, if they offered reasoning or evidence Mr Schwartz declined to refer to it.

      As for Tillman’s list, numbers 1, 2, 3, 8, 9, and 10 can go straight into the bin; 4 & 5 clash amusingly. 7 seems beside the point, and 6 is just an invitation to worship a false god. I imagine that’s roughly what Mr Tillman wants by way of reader reaction.

      If anyone still supported the proposition that the US should be run in terms of the Constitution – upper case “C” – this would all be a serious matter. But in fact, as far as I can see, the US is run in terms of a constitution – lower case “c” – in which habit, convention, and raw political power play the main role, and the role of the Constitution is to lend a frayed dignity to proceedings. I suppose this was inevitable, not only because of the errors of commission and omission in the Constitution itself, but perhaps because trying to boil down the whole shemozzle into a few, terse pages was always too ambitious. As E O Wilson said, approximately, in another context “fine theory, wrong species”.

      My alternative supposition is that the problem really lies in the Constitution being too hard to amend. Obviously it has to be much harder to change than ordinary statute law; obviously it has to be easier to amend than the Ten Commandments. Maybe the original authors just made a somewhat unsuitable choice in deciding where to place the balance. Or maybe, as I suspect, “wrong species” is the explanation. An old document cannot long restrain the natural instincts of a bunch of crooked politicians and lawyers. Only the electorate could do that, and the electorate is not inclined to.

    7. veryretired Says:

      Progressives are forced to lie about their true objectives, their true intentions to reach those objectives by any means possible, and the indifference they have toward any consequences that negatively effect the alleged beneficiaries of their policies, except as they can use those negative results as the basis for justifying more of their policies.

      All that’s needed is a complete lack of any ethical foundation, a denial of the process of cause and effect, and a relentless search for scapegoats to be used as needed to explain failure and justify more progressive policies.

      For examples, the entire 20th century is a good place to start.

    8. Whitehall Says:

      I see the Constitution as a contract made amongst the citizens on how they will govern themselves. As Trump would say, “It was a great deal, a huge deal.”

      Now some of the employees (starting with W. Wilson) want to twist the words of the agreement to suit their own ends, in violation of the spirit and the letter of the contract.

      When I first heard a description of the “living Constitution” concept in a lecture for a business law class for my MBA, I nearly hit the ceiling in anger.

      The Constitution is the written agreement. There are ways to change it written into the contract. Changing it while ignoring the contract is a breach.

      Following the Revolution, those Americans who did not support it and would not pledge loyalty to the new Republic were told to leave. Sometimes there was violence. Perhaps they can go live with PenGun up in the Icebox.

    9. TangoMan Says:

      Changing it while ignoring the contract is a breach.

      I sympathize. This is diversity for you. When you have groups in your society who can’t even agree on a fundamental issue like the Constitution which governs them, then you’re no longer in a society, you’re in some form of quasi-society.

      The first time that someone acted on the idea of a “living Constitution” they should have been arrested and imprisoned, or exiled, or shot. No one back then stood up for the Constitution and now look at where we are.

    10. Robert Schwartz Says:

      Dearieme insists on parodying what I wrote previously. I won’t try to correct her. I will merely restate my position that I thank heaven that i am not married to her.

    11. dearieme Says:

      Facts ain’t your strong point, Mr Schwarz. Stick to fulminations.

    12. brer rabbit Says:

      The US constitution says whatever the man with the most guns says it means. It is a living document. Words written 10 minutes ago cannot apply to the present because time changes everything. Only a strong masterful no nonsense leader backed up by a massive standing army can meet the needs of the people and the people need a leader to tell them what to do.

    13. Michael Hiteshew Says:

      Brer Rabbit, keep talking like that and the Democrats will draft you for the nomination!

    14. Mrs. Davis Says:

      B. Rabbit, meet Gen. James Matoon Scott, a man to your liking, no doubt.

    15. Whitehall Says:

      I believe Brer Rabbit is paraphrasing Mao:

      “Political power flows from the barrel of a gun.”

      Classic Leftism distilled.

    16. Will Says:

      It would seem to me that supporting 1205 would be good start in keeping the country intact, as well as fending off what’s coming next from the East River cabal.

      Bokova, a second generation communist with a long history of operating in the U.S., is favored to become the next boss:

    17. TMLutas Says:

      Brer Rabbit – We (those of us in the 1st world generally at the top of the global heap) are strategically in trouble because what you say is becoming less true by the day as smaller and smaller groups can generate the mayhem necessary to move nations regardless of the existence of even stronger groups.

      Michael Hiteshaw – What a delightful proposition. Let’s do it.

      Every time the Senate fails in their constitutional duties to pass a budget, etc. let’s send a proposed letter text to these 350 people (and any others who join them) to sign on to. Maybe they will even sign. More likely they won’t and the exercise will destroy their credibility the next time they attempt such a letter.

      PenGun – If you misstate, or worse misunderstand, the originalist position, you’re going to come up with garbage analysis. No originalist believes the Constitution is perfect. Originalists believe that the document provides for ways to improve it and we should limit ourselves to using those provided methods. If your proposed change is merely a passing fancy of five people, that should not be sufficient to move a nation to a new constitutional dispensation. Non-originalists believe that the Constitution may be altered without bothering to use the amendment process. Why they think so has varied reasons and none that I personally find convincing but they all share this common feature. If they don’t, they would be a variant of originalism.

    18. Anonymous Says:

      Thanks TM. I did say it was not something I understood at all well.

    19. Robert Schwartz Says:

      Dearieme: Testy, Testy, Testy.

    20. Michael Hiteshew Says:

      If your proposed change is merely a passing fancy of five people, that should not be sufficient to move a nation to a new constitutional dispensation.

      Well said.