Newsgroups: bit.listserv.politics
Date:         Fri, 20 Nov 1992 11:33:16 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Originalism and Facts: a disjoint posting

From:         Andy Freeman <andy@SAIL.STANFORD.EDU>

[Somebody]
>I have one question for those that say original intent should matter *most*:
>Does the line "...all men are created equal." have any other meaning than
>[White Land Owning Males]?

[Andy F.]
>In that document, it doesn't.  Since the declaration of independence
>hasn't had any legal weight since the adoption of the articles of
>confederation (which are also legally void now), it isn't clear why
>that's interesting though.

It is often considered interesting by "Originalists." Some brands,
anyway. While the Declaration has no legal force of its own,
it is evidence of the frame of mind of the framers of the
Constitution, and such evidence is generally considered
important by Originalists.

(I'm aware that Andy is only a half-hearted Originalist, so
I'm certainly not going to hold him responsible for unsound
views and arguments offered by the lion-hearted Originalists.)

> Why is the amendment process an unreasonable obligation
> for people who disagree with the original intent of the
>2nd amendment?  Why should the "growth" of the living
>constitution be subject to the whims of language change?  Why is the
>formal amendment process unacceptable?

The formal amendment process is quite acceptable. But,
Originalists must beware of claiming that the Constitution
is NOT a living document, because there is some evidence
that its Framers actually believed that the interpretation
of certain key concepts *should* change over time.

(This is not a problem for all Originalists, but
a complete taxonomy is beyond my purpose right now.
I may post a division of the menagerie in a couple of
weeks, since I am currently working through the issue
for my own purposes. I'll do it only if there is interest.)

>I don't have nearly as many objections to "interpretation" that
>increases the scope of rights, such as one that parallels the way that
>the meaning of "people" has been formally amended.

Ditto. Or rather, no, but I have less objection to an Originalism
that doesn't emphasize RESTRICTING rights so strongly as typical
modern Orginalists do.

One reason I have so little regard for the current spate
of Originalism is precisely that it has been adopted as
a device for *restricting* rather than expanding rights.
That isn't at all a logical consequence of the doctrine,
it's much more a historical accident.

A couple of brief comments about that:

1. Nowadays, many (I think most) Originalist are "Thayer
Rule" Originalists. The Thayer Rule says that interpreters
(and esp. judges) are bound to let legislation stand unless
the clear and establishable intention of the Framers meant
to bar such legislation. That's loading the dice. More interesting,
to me, at least, would be an Originalism that was more neutral.

2. I think I said, long ago, that I never heard of a real
life literalist about the first amendment guarantee to
freedom of speech. Meaning, no actual jurist of renown
interprets it as literally meaning that Congress should
make *NO* law abridging freedom of speech or of the press.
I now think that might be wrong. Hugo Black might be such
an Originalist. If so, then he holds what I just called
a "more interesting" view.

> Going the other way should only happen by means of the formal
> process.  Then again, I don't even have to concede "informal
> expansion is okay" because the 9th and 10th make that
> irrelevant in most cases.

Maybe. I hope so.
The problem is that you'll be held hostage by historians.
You will have to accept their verdict about what the
Framers intended when they wrote those amendments.
And myself, I think the outcome will depend on precisely
which kind of Originalism is used.

Last note about "persons":
there is some evidence that the Framers actually intended
to include corporations as legal persons in their official
wordings. Then again, that evidence is largely presented
(I think) by Charles Beard, who may not be the most
reliable historian....
=======

New topic, same Andy:

T on facts:
>andy from stanford apparently has a different definition of "fact" than I do.
>If I post a *fact* that is incorrect, please point it out and tell me the
>correct one (whatever - number, date, etc.).  If I present an opinion with
>which you disagree, please refute it.  Where I think he's lost is the
>difference between, say, "The Vietnam War was fought in the 1930's" (a clear
>factual mistake) and "The Vietnam War was simply a moneymaker for the defense
>industry (an opinion with which many could disagree and refute).

As must already be clear from a previous exchange, I, too, have
a different definition of "fact" from T's. Andy hasn't given
his definition, but from all appearances it is about the
same as mine.

>The distinctions that Clark is trying to make don't seem particularly
>interesting.  For example, once one shows that the Vietnam war was
>something other than "a moneymaker for the defense industry", it
>becomes a lot like "The Vietnam war was fought in the 1930's".  Some
>people probably believe both, so they're opinions, but they happen to
>be wrong.

Right. Consistent with my understanding of "fact" and "opinion."

(I personally have no opinion about whether the war was simply
a money-maker for the defense industry, however!)

>If I say something you don't like, that doesn't automatically make it a
>*factual* error.  Sorry to offend you - just try to learn the difference so
>you don't embarrass yourself.

But Andy didn't seem to be embarassed.

Perhaps because he never actually thought or suggested that
saying something Andy didn't like automatically convicted T
of a factual error. What he did think, I suppose, is that
when T says something that is not TRUE, THAT is a factual
error.

Jamie