Newsgroups: bit.listserv.politics
Date:         Tue, 5 Jan 1993 18:32:48 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Intention and stuff

Andy:
>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).

I don't see the distinction. Could you state it explicitly?

J:
>>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.

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

I think we must be again be confused about terminology.

J H Ely uses the word "interpretivist" nearly the way
I use "Originalist." I don't have his definition in front
of me, but I think he says something like: an interpretivist
believes that interpretation of constitutional passages should be
restricted to materials that are either within the four corners
of the document, or in the minds of the framers, authors,
ratifiers, or populace at the time of ratification.

J
>>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.

A
>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?

A little of each.

J
>>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.

A
>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....

Uh. I'm not sure I understand. But if I do, then I agree.

>>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.

Again, I'm not sure I understand.

If you are claiming, The framers WOULD have agreed with the
Brown Court, IF they had been aware of the same evidence
the Brown Court had before it; then I might agree with that.
But if THAT is the standard, I doubt we have much of a trace
of Originalism left. I mean, suppose this is the general
standard:
What would the framers have thought if they had seen all
of the arguments we had seen, and all the evidence, and
had weighed it and considered it carefully?

Then it isn't really a historical question at all. It is a
question of where the best arguments lead. And the best
judgment we can make about that is to decide for ourselves
which are the best arguments.

>  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.

Ok. So "intent" is actually dropping out of the equation
entirely. That's fine by me.

>>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.

Well, that's certainly true.
Let's find some honest originalists. It will be especially
helpful if we can find some who state up front exactly what
kind of Originalism they espouse, and stick to it. Then
we will see where that kind of Originalism leads.

Jamie
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