From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: Leonard Levy, "Original Intent", etc.
Date: 7 Oct 92 20:52:02 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

Clark Coleman (CC) writes:

CC> Robert Bork and other scholars have consistently emphasized that they prefer
CC> that their approach to Constitutional interpretation be called "original
CC> understanding" because of the misconceptions that the phrase "original
CC> intent" engenders.  The common understanding of a passage from the
CC> Constitution, whether an Amendment or original Article, both in the political
CC> community and in the community at large (we are a democracy, and not just
CC> in respect to legislation), is what Bork et al. want to determine. Reading
CC> speeches by the authors of a bill helps; but they are not necessarily
CC> decisive.

It matters little what names you use, and I don't think that Levy would object
to calling it "original understanding."  In fact, the Bork passages you quoted
referred to his school by the general "Originalists."  The question is really
whether Levy's characterization of the school is fair.  The so-called
"Originalist" or "Original Understanding" school falls under Levy's simple
definition, as I quoted it in this newsgroup.  I just don't see from your
discussion where Levy distorts the positions of "Originalists" or the problems
with their methodology.

But Bork does certainly distort Levy's views with his straw-man caricature of
Levy: 

"No even moderately sophisticated originalist holds the view Levy refutes.
Originalists, as expressed in Chapter 7, do not seek the subjective intent
of the Framers but rather the objective meaning that constitutional
language had when it was adopted..."

Usually, those who attack originalists argue that it is difficult, if not
impossible, to distinguish subjective from "objective" intent.  What is the
"objective" meaning of compromise language?  What gives it its special
character is that it doesn't mean the same thing to everyone.  So Bork is
merely begging the question here when he talks about "objective meaning."
Anyway, my reading of Levy is that he fairly characterizes originalists as
wanting to use the so-called objective meaning of the words.  It's just that
legal language carries even less "objective" content than normal discourse.
It is the wording, not of an individual, but of a group of individuals, none
of whom, presumably, are accomplished telepaths.  ;-)  

CC> So, tell me, what guidelines should we have if not "original understanding?"
CC> Whatever "seems right" to 5 Supreme Court justices?

This has been discussed, but we could probably argue forever on the subject.
Surely, "original understanding" is very important, and none of the "living
document" people argue for ignoring it.  Levy goes to great length to argue
for some adherence to "original intent."  But he also argues that textual
interpretation in law has always involved much more, including a healthy dose
of pragmatism.  Usually, there is no clear guidance in historical records on
issues that bear on modern times.  Who can say for sure what each person who
ratified the language of the 2nd thought of as a "militia"?  Would they
recognize such a body in today's America?  And if such a body did not exist,
should the 2nd, which was ostensibly created to support it, be interpreted to
guarantee personal ownership, even if the arms would probably never contribute
to a real milita organization?  Ultimately, we can't rely on how we guess
historical figures might have interpreted the Constitution.  We also need to
think about how their ideas can make sense in the modern world.  As far as I
can tell, implementing the 2nd as a catchall ban on gun control laws does
little to promote the defense of freedom and a lot to sustain the unacceptably
high levels of gun-related violence in modern America.  If it were to be 
implemented at all today, IMHO, it should be in the context of a real militia
organization or not at all. 

BTW, for the record, Levy stated his belief that the "original intent" of the
2nd was probably as a personal, not a collective, right.  Some of you seem to
think he has been promoting the opposite idea.  I have not read his views on
how he thinks the Court ought to deal with the 2nd in modern times.  Please don't
confuse his ideas with mine.  I'm the evil one.  ;-)

-----
Disclaimer:  Opinions expressed above are not those of my employer.

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA
Newsgroups: talk.politics.guns