Newsgroups: bit.listserv.politics
Date:         Mon, 4 Jan 1993 11:24:11 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: A taxonomy of Originalisms

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

>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.
I mentioned Hugo Black as an example.

>Consider the phrase "freedom of the press" from the 1st amendment.
>
>Suppose someone argued "the FFs thought that women were inferior and
>freedom of the press is intended to keep them in their place because
>the FFs were sure that open discussion would make women's inferiority
>evident".  Given the appropriate historical evidence, Jamie thinks
>that Originalists should then line up behind "the freedom of the press
>of the press clause means that we should oppress women".

I think SOME kinds of Originalists must do that, if they are consistent.

>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. But some kinds of Originalists insist
on it. They say that what is actually passed is an intent, and that
the sentences in an amendment, or article, are mere indicators of
the intent.
Some kinds of Originalists claim that the question we must ask
when deciding how to rule, is How would the framers have ruled
if they were now sitting? If there is evidence that they would
have used the implausible, "silly" reading of the first amendment,
then these psychological, counterfactual Originalists say that's
the correct ruling.


>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. I think the Psycho's would have a good
answer to THAT criticism, though. They would say, "The 'mooring'
is the intent of the framers. That is a real historical entity."

>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.

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

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

>Note that the consequences of those protections (which we use to
>justify them) can change significantly without affecting an
>originalist position.  Maybe we find that freedom of the press
>demonstrates that women aren't inferior.  An originalist's reply to an
>intentionalist's "but the FF's intended freedom of the press to
>oppress women" would be "so - they should have passed that if that's
>what they wanted.  They passed freedom of the press instead."  That's
>similar to an originalist's reply to the intentionalist's "but
><selected phrase>'s original meaning allows <bad thing>"; the
>originalist would say "so change the constitution".

This is what I called the Literalist approach. And as I said, I think
there is something to be said for it. But, it is very unpopular. It
is not popular with very many self-styled Originalists. It is not
Bork's view, for example.
I may as well give the reply from the Psychological Intent theorists
(even though I do not agree with their view).

They would say, "No one can frame wordings so that they anticipate
flawlessly every eventuality. The words always, inevitably, express
only imperfectly the real intent of the law. We should look to that
real intent, and not to its imperfect representation, when deciding
a difficult case."
You might look at what Scalia says about "cruel and unusual" as
an example.

>Jamie's taxonomy tends to try to apply Originalist arguments when they
>aren't even applicable, to situations that they're not even concerned
>with.

Nope.

Jamie
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