On Twitter, Representative Barbara Lee exploded the complete nonsense behind the “Originalist” theory of judging, claimed by people like the late Justice Scalia and Judge Amy Coney Barrett. They say the words of the Constitution should mean today what they meant in the 18th century, nothing more, nothing less.
Representative Lee tweeted:
An “originalist” reading of the Constitution would disqualify Judge Barrett, or any woman, from serving on the Supreme Court or from owning property or voting.
“Originalism” is a cover for deeply unpopular & un-democratic policies, not some kind of serious judicial philosophy.
Diane Ravitch's blog 
I would argue that an equally great problem with originalism is its denial of a third Revolution, fought during the first two thirds of the 20th century. This Revolution sought to add flesh to the barebones of the legal and constitutional promises made.
Women’s suffrage.
Labor rights.
Gay rights.
Reproductive rights.
Desegregation.
Social Security.
Voting rights.
Environmental protection.
Breathing life into racial justice through affirmative redress.
and more. . .
Originalism in this era is a political philosophy masquerading as a judicial philosophy held by those who wish to re-litigate this third Revolution.
I would argue this a bit differently. It not that they would “not permit,” it’s more about the notion that they could not have even conceived of the idea. Just like every generation in history. In order for the Constitution to mean anything, it must be nimble enough to embrace the previously inconceivable.
Just like every generation in history has its notions of what is inconceivable.
I had the same thought about Amy Coney Barrett. I also wondered that if she has been trained to defer to the men on the court, she may just follow their decisions without being an independent voice on the court. We know she has limited experience as a judge, and we know she is not the best person for the job. Sadly, there is not anything we can do about it now.
Biden had a great town hall last night. He gave the people thoughtful, policy packed responses to questions. If Biden wins, the people have to convince him to expand the court in the name of democracy.
The concern about Barret just following the decisions of the men on the court is well justified.
She has ties with a religious cult that preaches just such precepts.
Amy Coney Barrett tied to far-right religious cult that believes women should “submit” to husbands
https://www.salon.com/2020/09/29/amy-coney-barrett-tied-to-far-right-religious-cult-that-believes-women-should-submit-to-husbands_partner/
Which makes her nomination a brilliant move by the Republicans.
yes
The “precept” in application to Clarence Thomas?
Trump’s Senior Advisor for Strategic Communication is married to Matt Schlapp, Notre Dame graduate. His comments about BLM are posted at Wikipedia.
Fossil fuels – Barrett’s father and husband, Matt Schlapp’s lobbying for Koch Industries- small world.
She is the perfect pawn for the Christian right.
Okay, let me qualify the question I am about to ask (if the question itself doesn’t betray this fact, which, in this forum, I am confident it will), with the fact that I am not a lawyer.
Now: here is my question. When I was an undergraduate working on exegetical papers about Russian literature, I sought as part of this enterprise to discern the original intention of the authors under study. Where Dostoevsky, Turgenev, Pushkin and Gogol were concerned, that wasn’t easy. I got some help from critics like Rene Wellek and Edmund Wilson. Still, I struggled. In the final analysis, and even now, I would never claim to understand the “original” literary, literary, sociological, poetic, philosophical and personal intentions of the aforementioned authors in their fiction and even their non-fiction. My work was interpretation, however close I could get to a deep understanding of the text.
So, I ask this: how can a Supreme Court justice in 2020 perform an “originalist” exegesis on a document that was generated 233 years ago in secret by 55 wealthy white men (only 39 of whom signed the document–and keep in mind Rhode Island sent no delegates to the Constitutional Convention) with, in retrospect, a notable interest in protecting their own economic prerogatives and privileges? Can such a jurist, in our time and place, really claim to understand the “original” intentions of this document’s authors, and to interpret them along a narrow “originalist” (yeesh to that word, by the way, as any part of speech) spectrum?
I gave up all the complicated and conceptually flexible terms of art in literary criticism when I abandoned my doctoral candidacy and became a special education teacher, so I may be talking out of my depth here. But under the philosophical, historical, and hermeneutic circumstances of the creation of the United States Constitution, as well as those same circumstances contemporaneously, can anyone honestly, sincerely and (sorry about this adverb, philosophers) truthfully claim that they understand the “original” intentions of the authors of the Constitution? I mean, analyzing and interpreting the work of one author is difficult enough if taken seriously; when 55 “authors” were involved, well count me as skeptical when it comes to interpreting such a document to find its “original” intent.
A friend of mine with deep experience in philosophy calls “originalism” idiocy. I don’t have the training or credentials to make a claim like that, but I remain deeply skeptical of “originalism” as a judicial doctrine. It looks an awful lot like that thing little kids do when they don’t want to hear something: you know, covering their ears and yelling “lalalalalalalala.”
Am I missing something here?
Originalism
The origins of anything
Are really hard to know
From whence the universe did spring
Is place that’s hard to go
And even Steven Hawking
Had trouble knowing mind
Of God, who wasn’t talking
About the start of time
That pretty much sums it up as far as I’m concerned SomeDAM–and, well, poetically!
Long question. I will answer with a short answer: I think not.
By the way, special education and all it demands seems to make exegesis pale by comparison.
Thank you Roy.
Interesting. As you doubtless know, Mark, the foremost proponent of originalism (the doctrine of that meaning lies in the author’s intent) in literary criticism in the 20th and 21st centuries was E.D. Hirsch, Jr. In his book Validity in Interpretation, Hirsch poses the question as to whether there is some means by which we can verify whether literary interpretations are correct or incorrect, well or ill reasoned. His claim is that the only principle of verification that presents itself there is the concept of the author’s intent. Hirsch is at pains to point out that this is so EVEN THOUGH RECOVERING THAT INTENT CAN BE DIFFICULT–can require, for example, knowledge of the author’s life and thought and influences and whole body of work, of conventions of genre at the time of the writing, of historical changes in the language. In other words, recovering intent can, as you suggest, require serious scholarship.
An argument that Hirsch doesn’t make but that supports his view, is this: the very possibility of communication depends upon tacit assumptions that “authors” (speakers, for example) have intentions that “readers” (listeners, for example) can recover those, and that “reading” (listening) depends upon acceptance of the principle of verification. If you say to me, “The sky is blue” and I answer, “No, the sky is not sad,” clearly I am choosing to ignore your intent, which is to describe the color of the sky rather than its emotional state, and in so doing–in ignoring your intent–I am subverting the communication.
I buy Hirsch’s argument, but with a caveat: there is another significant meaning of “meaning.” There’s the intention of the communication. That’s “meaning” 1. And there is the significance of the communication. That’s “meaning” 2. And both play significant roles in interpretation. When we read a literary text, we enter into a world and have an experience there. That experience has significance to us–has “meaning” 2. Typically, if the work is well wrought by its author, there will be little gulf between “meaning” 1 (intention) and “meaning” 2 (significance), but sometimes there might be quite a lot. So, for example, many readers of Paradise Lost find themselves rooting for the villain, Satan, but that doubtless not Milton’s intent, despite what some readers (Percy Shelley and his circle, for example) might think.
All that said, I think that there is a huge difference between literary and legal interpretation when it comes to intent. we are forced by the state (a “state” is an institution with a monopoly on violence) to live in accordance to the latter and not in accordance with the former! So, there’s a LOT at stake in legal interpretation that isn’t at stake in literary interpretation. We can recognize that the intent of the founders was likely to have been to confer equal rights on white, propertied, heterosexual men and recognize that we’ve moved beyond that and wish to confer equal rights on all people, despite their race, ownership of property, or sexual orientation. Laws must be living documents.
So, in sum, originalism in literary interpretation is defensible, and originalism in legal interpretation isn’t.
In both legal and literary interpretation, I think that we also have to consider significance, and in legal interpretation, this is emphatically so. What does this interpretation mean for people’s lives? Do we really want to “forget the ladies,” as Abigail Adams put it, because many eighteenth century, propertied men were quite willing to do so when they spoke of equality and liberty? I don’t think so. Why, because this really matters, has great significance, to all of us.
Excellent, Bob, and thank you. I particularly appreciated your invocation of Milton: I loved “Paradise Lost” but absolutely struggled with making sense of it in a paper (though I must have done something right, because my adviser and teacher, the great Miriam Slater, liked it). You’re right, of course: misinterpreting a passage from Turgenev’s “A Hunter’s Album” doesn’t deprive a person of their rights–or endow a person with a right to befoul the commons; misinterpreting the Constitution, however, is another matter.
Again, Bob, thanks.
Always so impressed, Mark, by the capaciousness of your mind and interests. Again, readers of this blog, if you haven’t found Mark’s website, markstextterminal, check it out. Wonderful resources for teachers. https://markstextterminal.com/
Thanks Bob: Today’s special? A context clues worksheet on the adjective “futile.”
lol
“Am I missing something here?”
I’m a frayed knot. All too often the “din” of concocted notoriety
rests on the shambolic “technology” of mind reading or
precognition.
“The flounders knew this or that. The flounders meant this or
that. The flounders knew what would happen…”
I guess myths endure because their stories resolve contradictions
that logic, reason and “facts” cannot.
In the name of the flounder, the sunfish, and the holey mackeral,
go and vote…
LMAO!!!
Well, we do know that Jefferson believed that the Constitution should be revised once a generation: “every 19 years.”
I think so and if someone else answered this question further down, I apologize. I haven’t gotten there yet. I think I said this once before. the originalist or textualist position is that the courts should not make policy/law. It is the job of Congress to make law. If the text of the Constitution no longer supports the will of the people, then it can be amended as has been done in the past. There is also the argument that some laws which are declared unconstitutional can be changed through the legislative process in such a way that they are no longer so. I don’t get how that works. Is there a lawyer in the house?
Mercedes and Matt Schlapp-
Mercedes, mother of 5, is Trump’s Senior Advisor for Strategic Communication. Following Biden’s Town Hall, she tweeted a disparaging comparison between Mr. Rogers and Joe Biden. Matt, her husband, is a former Koch lobbyist, graduate of Notre Dame and St. Thomas Aquinas Catholic school. Wikipedia reported, Schlapp, “alleged that BLM was ‘hostile to families. capitalism, cops, unborn life and gender.’ ”
In May, Catholics for Trump hosted an online program, “Faith in America”, featuring Mr. and Mrs. Schlapp.
No two people better reflect Trump’s presidency, the base of his power and the future of the nation with the GOP in power.
People dying like feral dogs in the gutter.
Unlike our Senators, I don’t have a pocket Constitution at hand. What provision of the constitution would have prohibited a woman from serving as a Supreme Court justice?
Women’s right to vote was secured not through an anti-originalist interpretation of the constitution (or any interpretation of the constitution), but through the amendment process set forth by the framers.
Interesting question. If we read the Constitution solely in terms of the intent of its authors, then we would have to conclude that women would have been barred from holding such a position, even if there is no explicit prohibition, for the common belief among men, at the time, was that women were unsuited to such jobs. From Wikipedia:
In 1872, the United States Supreme Court affirmed a decision from the Supreme Court of Illinois that denied Myra Bradwell admission to the state bar. The state Supreme Court had reasoned that because state law invalidated any contract entered into by a married woman without the consent of her husband, women (most of whom would be married) could not adequately represent her clients. The U.S. Supreme Court affirmed, noting that even though some women might not actually be married, such women were the rare exceptions. The U.S. Supreme Court noted:
I do have a pocket Constitution at hand (at least always in the backpack I use when traveling, and it’s not the one Sen. Lee carries around). While your argument is legalistically correct, it is false in fact and, indeed, the reddest of herrings. It is implied because women did not have the right to vote for 131 years after the Constitution was drafted. Without the right to vote, there was no possibility of ever having a woman named a judge.
I did a Google search on “Who was the first American woman to become a judge?” While there were lower court judges earlier (but not much earlier), the first woman to become a federal judge was Genevieve Rose Cline, who was named by Calvin Coolidge in 1928, eight years after the ratification of the 19th amendment. So I have no argument at all with your second paragraph.
https://www.uscourts.gov/about-federal-courts/educational-resources/annual-observances/womens-history-month
Moreover, it took another eight years before Franklin Roosevelt appointed the first Black American, William H. Hastie, to a federal judgeship. Certainly, the possibility existed upon passage of the 13th, 14th, and 15th amendments, but in reality, the courts really opened up for Black Americans following the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Nebraska Sen. Ben Sasse (Judiciary Committee) encouraged Trump to nominate Barrett. Sasse is a regular attendee at Koch gatherings. The Senate has to remain GOP for Koch businesses to thrive.
CatholicVote.org expressed its appreciation to Sasse for his resolution affirming the Constitutional ban on religious tests. At Sasse’s website he describes the following, “These ugly smears against Judge Barrett, laundered through Newsweek and Reuters, are a combination of anti-Catholic bigotry and QAnon-level stupidity”. Allegedly, Sasse said that Trump makes fun of evangelicals. Republicans know power and who is executing it.
Did you read Senator Ben Sasse’s effort to distance himself from Trump?
This is from today’s NY Times:
Senator Ben Sasse, Republican of Nebraska, castigated President Trump in a telephone town hall with constituents on Wednesday, accusing the president of bungling the response to the coronavirus pandemic, cozying up to dictators and white supremacists, and offending voters so broadly that he might cause a “Republican blood bath” in the Senate.
In a dire, nine-minute indictment of Mr. Trump’s foreign policy and what Mr. Sasse called his “deficient” values, the senator said the president had mistreated women and alienated important allies around the globe, been a profligate spender, ignored human rights and treated the pandemic like a “P.R. crisis.” He predicted that a loss by Mr. Trump on Election Day, less than three weeks away, “looks likely,” and said that Republicans would face steep repercussions for having backed him so staunchly over four tumultuous years.
“The debate is not going to be, ‘Ben Sasse, why were you so mean to Donald Trump?’” Mr. Sasse said, according to audio obtained by The Washington Examiner and authenticated by The New York Times. “It’s going to be, ‘What the heck were any of us thinking, that selling a TV-obsessed, narcissistic individual to the American people was a good idea?’”
“We are staring down the barrel of a blue tsunami,” he added.
Mr. Sasse also hinted at more drastic consequences: a “Venezuela style” Supreme Court with dozens of justices installed by ascendant Democrats; an empowered China ruling the Pacific because of Mr. Trump’s “weak” policies; and American allies doubting whether they can “trust in U.S. strength and U.S. will.”
Fascinating. Thus, if we accept the idea that Koch and Sasse are together philosophically, is this an indication that the Koch picture of Trump is now a torn canvass?
“Mr. Sasse also hinted at more drastic consequences: a “Venezuela style” Supreme Court with dozens of justices installed by ascendant Democrats”
I doubt it, but we can always hope.
This guy’s speech is just a little late. He’s made his bed and will now have to our in it.
Lie in it.
Sasse has supported Trump nearly 87% of the time.
https://projects.fivethirtyeight.com/congress-trump-score/ben-sasse/
So his speech is just hilarious.
Hes got a bad case of buyers remorse.
Note that he is more worried that the Democrats will get back in power than he is about the damage Trump has done.
Hes pathetic.
How about the “debate” that Sen. Sasse refers to be, “Sen. Sasse, why did you vote against the confirmation of Amy Coney Barrett?”
Or–since you are suddenly distancing yourself from it45–perhaps you will convince her that it45 is unfit to be president, & she would vote against it if the election results are unclear & some to SCotUS.
(As the 8-Ball would say, “Doubtful.”)
Cases has commented that he has problems with Trump, but lives his judge picks.
Like so many others, he’s just a naked opportunist, just as Jeff Flake and Mitt Romney are.
They will “tolerate” everything about the man that they purport to dislike as long as he delivers the goods.
In my opinion, these people are actually worse than the ones who don’t criticize Trump.
But the so called “liberal” media (NY Times, Washington Post, NPR, CNN, MSNBC) love them because they criticize Trump.
Sasse, not Cases
Self correct sucks
If the Founding Fathers had wanted the Consitution to never change as if it had been carved in concrete without any interpretation allowed, they wouldn’t have included a process to amend the Constitution in the future due to changes in the world, our culture, and country.
“The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.”
Take the 2nd Amendment as an example. When the Founders wrote the 2nd Amendment, the second revision (written by the Founders) to the original U.S. Constitution, the only firearms were muskets that could be fired at most six times a minute vs a modern AR-15 that is capable of firing about 600 rounds a minute. Since most Americans lived in remote rural areas back then and had to grow their own food or go hunting, it makes sense that the Founders added the 2nd Amendment to the U.S. Constitution.
But, how many Americans that own firearms use their weapons today to go out and hunt for their meat?
Tenderized Meat
I shot it for a minute
With AR15 gun
The 🦌 could never win it
And shooting’s lots of fun
None of us knows the “intent” of our lives or every action we take or everything we write or say. And even if we intend something we can never know all the outcomes of our actions. To try to hold any text to a specific intent is ridiculous let alone a text that sets out legal and political structure.
Let alone a text written more than 200 years ago in very different times. What would the Founding Fathers say about Internet regulation?