Tuesday, March 25, 2008

Disconnected Originalism

I'm not an originalist, for reasons I can and have expounded on at great length. But that doesn't mean I don't understand it's appeal, particularly to lay persons not used to thinking about theories of interpretation. When we make a statement, we want it to mean what we want it to mean. We get upset when folks take our words to mean something we did not intend. "That wasn't what I meant!" is a common lament of those who feel that the interpretation of their words has deviated from their original intention. Originalism, of course, appeals to that same instinct. If I don't like my words to mean something different from what I meant them to mean, why should want anything else for my constitution?

The problem is this linkage is one of original intention. But, for reasons I outline in this post, most originalists today have abandoned original intent as unworkable, in favor of original meaning or understanding. These two forms of originalism don't connect with that intuitive "I want to mean what I want to mean" formula. Hence, we have a disconnect between how originalism is academically justified and operationalized, and it gains popular support and legitimacy.


PG said...

How do you distinguish originalism in its original meaning/understanding form, from a Scalian textualism that uses 1789 dictionaries? I suppose Thomas's opinion in Bong Hits 4 Jesus (one not joined by any other justice) shows the distinction between original understanding and original meaning, inasmuch as he relies on the fact that Olde Tyme schoolmasters didn't think their students had free speech rights, therefore the original understanding was that free speech didn't apply in public schools.

Incidentally, I can't remember if you've ever commented on Judge McConnell's attempt to rescue Brown v. Board's result through originalism. If so, could you link the post?

David Schraub said...

I think Scalia's textualism is a form of originalism (original meaning, since it's not apparently based on intent and the use of dictionaries is more about the technical meaning of terms rather than how they were debated and understood in the public sphere).

I was aware of McConnell's Brown article, but I haven't done more than glance at it, so I haven't commented. It's on my (infinitely long) reading list, though.