Organization: Computer Science Department,  Stanford University.
Newsgroups: bit.listserv.politics
Date:         Mon, 4 Jan 1993 13:06:44 -0800
From:         Andy Freeman <andy@SAIL.STANFORD.EDU>
Subject:      Re: A taxonomy of Originalisms

>>That's all well and good, but it assumes a meaning of intent that
>>isn't necessarily relevant.  (There's a reason why Jamie uses "intent"
>>while I use "meaning", often with "word" prepended.)
>
>Well, actually, I pointed out that Originalists can be Literalists.
>Literalists don't actually care much about "intent" strictly speaking
>at all. They care about the literal meaning of the words in the
>text. But there are not very many of those sorts of theorists.

Which is somewhat surprising since there are a lot of issues that can
be handled with the text and word meaning.  One would think that we'd
fall back on other things only when the text didn't answer the
questions that we're asking, but we don't.  We leap to them FIRST.

>>That's silly.  That's confusing justifications, which weren't passed,
>>with what was passed.
>
>According to some kinds of Originalists, that is a distinction which
>does not exist. Recall that Andy himself claimed that "intent" is
>what is passed. I denied this.

Jamie and I are talking about two different kinds of intent.  It's
like the difference between "press = media" and "press = way to
demonstrate that people are equal".  We can argue about whether or not
"freedom of the press" applies to govt provided facilities, but when
we start arguing about whether freedom of the press applies to
activities that argue that some people are more equal than others,
we've moved from intent(1) to intent(2).

>>An originalist criticism of the intent school is that their rejection
>>of "bad" justification (real and imagined) combines with their
>>confusion of justifications with meaning to cut the Constitution's
>>meaning free from any mooring.
>
>Since "intent" theorists ARE Originalists, it is mysterious why
>Originalists would be criticizing intent theory. Perhaps andy
>means that Literalists Originalists would criticize Psychological
>Originalists that way.

Nope - there's an even simpler explanation.  Andy typed "intent" when
he should have typed "interpret".  He made that mistake consistently
throughout the message.  (However, he also typed "intent" when he
should have typed "intent".  Argh!)

>>That's why I ask what changes when our conception of the word "press"
>>changes.  If the constitutional protections afforded by the phrase
>>"freedom of the press" change, then the constitution's protections are
>>subject to whim.  If the constitutional protections don't change, they
>>aren't.  Note that we can change the constitution, so adherence to
>>original meaning doesn't imply stasis.
>
>Personally, I don't think changes in our conception of the word
>"press" should have any consequences for constitutional theory
>at all. Nor do Originalists.

Ah, but interpretavists do.  Consider the phrase "well-regulated
militia".

>However, unlike Originalists, I believe that we might come to
>have a better understanding of what freedom of the press requires
>than the framers had. Actually, I think we already have a better
>understanding.

Really?  Does this "better understanding" lead to a more Hugo Black
view of the 1st or a more "freedom of the press must be restricted for
the common good" interpretation?  An originalist might well respond to
the former with "they passed the right thing, even though they didn't
obey it as much as they should".

>Something like this happened in the 50's with
>the notion of equal treatment. We came to have a better understanding
>of what it requires than its framers had.

I don't see this.  There are two arguments for "separate but equal".
One is "we need some cover for unequal".  The other depends on whether
or not separate can be equal and then on whether it is.  If it can't
or it isn't....

>Thus, Brown v Board was a correct ruling, even though it is not a
>ruling the framers of the 14th would have endorsed.

I'm not convinced of this.  The authors of the 14th didn't push
separate but equal, but they did push through a number of civil rights
acts that were the basis of using evidence to determine whether or not
separate can be/is equal.

There may have been some "ship the back" supporters of the 14th, but
that seems like a separate question.

>I do not see how Originalists can agree with me about this point.
>However, some DO agree with me. I think they are inconsistent.

I'd have to see the historical evidence supporting a "the authors of
the 14th would take separate over equal given a choice".  (A friend of
mine just published a book that reviews this sort of evidence wrt a
specific question - I'm supposed to get a copy this week and I'll see
what he found.)  In any event, I'd point out that they didn't pass
separate, they passed equal.  If they wanted something else, they
should have passed it.

>is not popular with very many self-styled Originalists. It is not
>Bork's view, for example.

An honest originalist has to use historical evidence.  Bork doesn't;
he fakes it.

-andy
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