And not just any random leftist, but Mr Soft Totalitarian himself, Cass Sunstein, who would “nudge” you into compliance with a world of his narcissistic design — and who today wants you to forget about all this intent balderdash and come to love the Constitution not for what it is, but for what people like he can do with it, if given the proper hermeneutic latitude.<\/p>\n
“Resist the Siren\u2019s Call of \u2019Originalism\u2019”:<\/a><\/p>\n Originalists insist that the meaning of the Constitution is settled by the original public meaning of its terms — that is, the meaning of its provisions when they were ratified. According to Scalia and Thomas, the job<\/a> of the judges is to go into a kind of time machine and learn what history tells them about the \u201cexpected applications\u201d of these provisions.<\/p>\n If the Equal Protection Clause was originally understood to allow sex discrimination, the Constitution allows sex discrimination. If the First Amendment was originally understood to allow regulation of commercial advertising, it allows regulation of commercial advertising.<\/p>\n The strongest defenders<\/a> of originalism recognize that their method has to be defended, not simply asserted. This is important, because it is tempting to think that originalism is built into the very idea of interpretation. That\u2019s a mistake.<\/p>\n True, you can\u2019t ignore the words of the Constitution while claiming to interpret it. But you can be faithful to the Constitution\u2019s text while also believing that its meaning isn\u2019t fixed by the original understanding (and the \u201cexpected applications\u201d). You can fully respect the text of the Equal Protection Clause while concluding that the clause bans sex discrimination even if the original understanding was otherwise.<\/p><\/blockquote>\n No, actually, you can’t.\u00a0\u00a0 And note that throughout, what Sunstein does is assert:\u00a0 “you can be faithful to the Constitution’s text while also believing its meaning isn’t fixed […]”; “you can fully respect the text of the Equal Protection Clause while concluding that the clause bans sex descrimination even if the original understanding is otherwise.”\u00a0 But linguistically speaking, this is absurd:\u00a0 you can<\/em> of course conclude that something that wasn’t intended to mean one thing can mean that thing, but that just means that your conclusion is faulty, self-serving, and incoherent.\u00a0 Similarly, you can’t<\/em> be faithful to the Constitution’s text “while also believing its meaning isn’t fixed” because if it’s meaning isn’t fixed you aren’t being faithful to any thing<\/em> save some floating marks — and you are showing fidelity not to a text but to a procedure<\/em>, and one that allows you to claim that you have a right to consistently recreate with that procedure your own<\/em> thing, which you can then claim to be faithful to.<\/p>\n Which, how charitable of you!<\/p>\n But let’s address Sunstein’s reasoning, such as it, by looking at his arguments in turn.\u00a0 He writes:<\/p>\n Originalists contend<\/a> that their approach is best because it reduces the discretion of judges, stabilizes the legal system, and ensures that the Constitution\u2019s meaning is settled by the judgments of We the People, who ratified its provisions. Scalia argues that originalists help to produce a \u201crock-solid, unchanging\u201d Constitution — and that if the document reflects the views of people long dead, well, that\u2019s fine, because those who are living are always free to amend it.<\/p>\n It seems like an appealing argument, but it faces three objections. The first is historical. Did those who ratified the Constitution embrace originalism? If not, originalism turns out to be self-contradictory, because the original understanding rejected originalism as Scalia and Thomas understand<\/a> it.<\/p><\/blockquote>\n As I’ve shown on several occasions, just because Scalia, eg., doesn’t correctly explain his “textualism” (which is in fact intentionalism) doesn’t mean he isn’t actually engaging in an intentionalist approach to the interpreting the Constitution.\u00a0 To extrapolate out from that — and even given Sunstein’s absurd idea that the ratifiers didn’t believe themselves to mean what they meant when they voted to ratify what it is they voted to ratify — it makes no difference how one describes what one is doing when one interprets, because intentionalism, as you’ve heard me say over and over again, just is<\/em>.\u00a0 And in the end, all we have to decide is whose intention we believe should be privileged when dealing with legal texts:\u00a0 those who signified them and passed those signs into law intended to function in a particular way and in specific circumstances?\u00a0 Or those who believe themselves clever enough to extrapolate from signifiers — having reduced the text of the Constitution to its marks, not its signs (that is, those who have robbed it of what makes it language to begin with, in order to resupply it with their own signification, and rewrite the text using their own intentions to turn the marks back into language of their<\/em> choosing) — and thereby lay claim to being the Constitutions “interpreters” when what they are really laying claim to is being its new authors.<\/p>\n The Constitution contains broad and abstract terms, such as \u201cequal protection of the laws,\u201d \u201cfreedom of speech\u201d and \u201ccruel and unusual punishment.\u201d It is reasonable to object that We the People didn\u2019t understand the meaning of such provisions to be frozen for all time. Some originalists have tried to meet that objection, by pointing to history that seems to support their view, but it isn\u2019t a simple task. And, in fact, other self-described originalists insist<\/a> that because the Constitution deliberately uses broad terms, originalist judges legitimately understand the meanings of those terms to change over time.<\/p><\/blockquote>\n More sophistry, broadly extrapolated: if some terms are broad and abstract enough where latitude is given for how they may reasonably be interpreted, that just means that the authors left that latitude, either intentionally or accidentally. In either case, what we know is, they had a meaning — and legal convention allows for some latitude to apply meaning should a text prove abstract, and there is no recourse to understanding what specifically was intended by it.\u00a0 This does not mean, though, that because some terms are abstract, the entire document is abstract, or that we can take very specifically understandable intent and abstract it ourselves.\u00a0 What Sunstein wishes to do is to say that because we can’t possibly gauge all intent perfectly, we needn’t worry about intent at all.\u00a0 Which is absurd — and dangerous.<\/p>\n Because what he’s doing in that instance is making the claim that whatever new intent can be applied to the text has equal standing with the text as intended.\u00a0 Or to put it another way, the Constitution doesn’t exist unless and until it is applied by the latest people to suggest its application.<\/p>\n The second objection has to do with changed circumstances. In prohibiting unreasonable searches and seizures, the ratifiers of the Fourth Amendment couldn\u2019t have anticipated wiretapping, much less the Internet. But it would be absurd to think that the government has unlimited power to tap our phones and monitor our e-mails.<\/p>\n