Interesting piece in Public Discourse on “Originalism and Judicial Restraint”.
Let me add a few thoughts: the “problem” with originalism is that sometimes people fail in their good-faith attempts to reach the correct interpretative conclusion. Meaning that the problem with originalism is not originalism: it is human error, which is variable we cannot remove from the interpretive equation regardless of the methodological tools we deploy.
As with intentionalism, it is not the case that intentionalists can’t get interpretations wrong; they can and they do, which is to be expected given the complex nature of corralling a second order system of symbolism whose animating feature is unpredictable human agency. That having been said, intentionalism’s great virtue — and originalism’s great virtue — rests with the understanding that those acting from an intentionalist position are at least trying to interpret.
— Whereas those who resist the linguistically commonsense revelations of an intentionalist stance toward language — namely, that language, in order to be language (and not just something that looks like language) is made up of signs and is intended to mean; and therefore any act calling itself “intepretation” should begin with the recognition that some agency signified the marks one is now being asked to interpret — have determined prior to any engagement with a presumably intended text that interpretation is not what they are after (though they pretend it is, or else misunderstand what it is they are doing), and instead engage in activities whose products they claim are born of interpretation and yet are not: they are the products of appearing to interpret, but are more properly understood as creating new texts. A linguistic coup.
Originalism, from the standpoint of legal hermeneutics, is the only justifiable “theory” that can call itself interpretive. Like intentionalism, it just is.
Because if we don’t conceive of legal documents as intended to begin with — and so carrying with them an implied and fixed meaning, constrained in practice by convention — then we really have no need of a legislature, save to create the trappings of law, which lawyers and the judicial branch will then rewrite and enforce as they see fit.
And that would like, totally suck.
It does seem remarkably peculiar that interpreters would, as a commonplace, begin with the assumption of an unrecognized incoherence (according them the charitable benefit of the doubt, that is, that they don’t happen to know what it is they’re doing), yet these same interpreters presume they can arrive at a coherent interpretive product somehow. Does this mere phenomenon — as a raw datum — mean that the results of interpretation must not be terribly important for the most part, or from a practical point of view, seeing as how starting with an incoherence should more often than not end in incoherence as well?
Here’s some origionalism…
We may need a Charles Dodgeson to go along with our resident George Orwell:
This is the method to be used on those laws which were passed with the intent of addressing something particular, passed to have a precise, intended, meaning.
There is another method which is employed so as to have no precise meaning at the time of passage, but to allow the “meaning” to evolve over time. These laws can have two forms.
One is to be written as if it is a “studies” thesis paper so that no one can say what it “means” as its only meaning is to have all meaning read into it by the executive and judicial branches as they read therein their own prejudices and implement them. Obamacare and the Stimulus fit this mold. One which uses turgid and confused text to hide that it is, after stripping away all the useless fluff, simply a variation of the original way below.
This way was described back in the early progressive era.
So the same ilk, interpreters by invented intent, also invent intentions open to interpretation? Or are these interpretables an intended diversion from the invented intent?
Trying to follow…
The latter would seem so, as there is no assurance that the inventor, or his kind, will always be the interpreter. While the battles are of the “fluff”, the war “breaks the egg”? …contraceptive mandate ~ full-blown socialized medicine?
I’m going to take exception to a couple of things in the pieces at “The Public Discourse”. I’m not going to make a case for what I believe as I don’t feel up to spending the time. This first sentence is from the article linked in the post.
It is my sincere belief that a through look at John Paul Stevens dissent would turn up the same lack of rigor and even outright fraud that went into Professor of History Michael A. Bellesiles’s ” Arming America: The Origins of a National Gun Culture”.
This second excert is from this piece which is linked in the first article.
I would contend first that there is a difference between “textualism” and originalism but even so both would reach the same conclusion that the “right of the people to keep and bear arms” as expressed in text and the intent behind the text of the 2nd amendment is an individual right.
bs amerikkka go proggtards