tag:blogger.com,1999:blog-7321349.post3300521808030536391..comments2024-03-18T22:21:33.261-07:00Comments on The Debate Link: What Makes This Song New?David Schraubhttp://www.blogger.com/profile/04946653376744012423noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-7321349.post-54201179993501940032009-08-27T08:52:05.122-07:002009-08-27T08:52:05.122-07:00"This is where the structure and history of t..."This is where the structure and history of the 14th Amendment come into play. Think real hard about the two constitutional amendments bracketing the 14th Amendment, and you'll start heading down the right originalist road. :)"<br /><br />That's what I thought the standard original <i>intent</i> argument was. How can you refer to the history not only of the 14th Amendment but also of the 13th and 15th as telling us what the 14th meant, while denying that we can get meaning from what Congress was doing around that same time? My understanding was that original meaning required one to say "This is what the specific words in this amendment meant at the time," not "The words meant this, and we know this not because of the actual words, but because of what some other amendments passed at the same time said."PGhttps://www.blogger.com/profile/09381347581328622706noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-32839739420928036802009-08-26T20:03:23.620-07:002009-08-26T20:03:23.620-07:00Yeah, I have to admit I'm confused about what ...Yeah, I have to admit I'm confused about what the doctrine "should" be assuming <i>both</i> Plessy (segregation is constitutionally permissible) and Brown (segregation is constitutionally impermissible) are wrong. Moreover, from a structuralist standpoint that combines amendments 13 - 15 together, there is a "plausible" case that the amendments were meant to protect "political" but not "social" rights (the <i>Plessy</i> logic).<br /><br />I also think that even from an original public meaning perspective, it is tough to argue that <i>Dred Scott</i> isn't even a <i>plausible</i> "interpretation of the constitutional text at issue" (indeed, C.J. Taney's opinion spends quite some time establishing that). And I think you could make a plausible case that the public meaning of the 14th amendment was not understood to forbid state-sponsored segregation.<br /><br />Of course, even narrowing the inquiry to "original public meaning" means that we're seriously stretching both the terms "plausible interpretation" and "nonsense on stilts". If only one interpretative theory is legitimate to utilize as to whether a case is "nonsense" or not, then we're not really talking about "plausibility" in any meaningful sense -- it should be reasonably black and white. The whole point about using the term "plausible", as opposed to the alternative of simply "correct", is to admit there are these differences in (among other things) interpretative schemas and we can't just throw out precedent because it doesn't follow our particular preferences in that matter.<br /><br />The real problem is that "plausible interpretation" doesn't seem to be doing any work except knocking out "interpretations I don't like", which gets us back to the original problem: that this theory is effectively nihilist -- "nonsense on stilts".David Schraubhttps://www.blogger.com/profile/04946653376744012423noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-33362891063838108782009-08-26T19:22:54.841-07:002009-08-26T19:22:54.841-07:00PG-
This is where the structure and history of th...PG-<br /><br />This is where the structure and history of the 14th Amendment come into play. Think real hard about the two constitutional amendments bracketing the 14th Amendment, and you'll start heading down the right originalist road. :)Steve Dillard (aka Feddie)https://www.blogger.com/profile/13456537815453248362noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-26962294619169430222009-08-26T19:13:48.030-07:002009-08-26T19:13:48.030-07:00What matters to me is the original meaning of the ...<i>What matters to me is the original meaning of the ratified text, and under this brand of originalism Brown and Plessy are simply not plausible interpretations of the Fourteenth Amendment.</i><br /><br />Howzat? If neither Plessy nor the case overturning Plessy plausibly interpreted the 14th Amendment, what <i>does</i> the 14th Amendment -- which doesn't even mention race in its text -- mean?PGhttps://www.blogger.com/profile/09381347581328622706noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-59045647998020796812009-08-26T18:09:31.958-07:002009-08-26T18:09:31.958-07:00David-
Your criticism would be valid if I were ar...David-<br /><br />Your criticism would be valid if I were arguing that the original intent of the framers/ratifying legislators mattered in determining the meaning of constitutional text. But as you know all too well, that is not my view or brand of originalism. What matters to me is the original meaning of the ratified text, and under this brand of originalism Brown and Plessy are simply not plausible interpretations of the Fourteenth Amendment.Steve Dillardhttps://www.blogger.com/profile/11134393338817941487noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-33220388097266420762009-08-26T12:05:27.371-07:002009-08-26T12:05:27.371-07:00Graber's book certainly makes a strong argumen...Graber's book certainly makes a strong argument on <i>Dred Scott</i>. I'm not sure I buy it wholesale, but I think it certainly shows the decision is based on a "plausible interpretation of the constitutional text at issue," which is Feddie's stated standard here.David Schraubhttps://www.blogger.com/profile/04946653376744012423noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-59006776144297185202009-08-26T11:22:26.394-07:002009-08-26T11:22:26.394-07:00Not sure you're right about Dred Scott, but de...Not sure you're right about Dred Scott, but definitely true for Plessy. Michael McConnell may have tried to make Brown's result safe for originalism, but I don't buy it, and originalism certainly doesn't requires his result. (Meanwhile, Bork's is a pathetic dodge; it essentially boils down to "we can ignore what the contemporaneous Congress actually did so long as we think they'd approve of our goals." This is how we get <a href="http://www.blogdenovo.org/archives/1733.html" rel="nofollow">Leegin in the face of the CGPA</a>.) I kind of grudgingly admire the conservatives who acknowledge that Plessy was a perfectly good interpretation of the Constitution and that there's no way to reach Brown's result through their preferred methods of interpretation. Of course, those are conservatives who don't run for office, and therefore are free to express unpopular views.PGhttps://www.blogger.com/profile/09381347581328622706noreply@blogger.com