Re: constructionism, textualism, and originalism

Posted by Eric Charles-2 on Oct 22, 2020; 2:38am
URL: http://friam.383.s1.nabble.com/constructionism-textualism-and-originalism-tp7598797p7599217.html

That article is baffling. Just because a method is hard doesn't mean it is an invalid method. Also, the focus on the particularly contentious issues masks the broad agreement about what most of the constitution meant at the time. We focus so much on the ideologically split decisions, but it is not unusual to have a year with 50% unanimous SCOTUS decisions (orange line below), and the number of decisions that split 5-4 between the "liberal" and "conservative' justices is small. In fact if you look at the graph with just one green line, it shows the number of configurations that made up 5-4 decisions during the term in question; in the final year shown (2018) every "conservative" justice served as a "swing vote" siding with the "liberal" justices for at least one decision, and vice versa.

Also, beyond that, nothing in the article is about "Barrett's Originalism." It is broadsided attack about whether we can ever know what anyone meant by anything. 

I mean, if I go before a judge with a prenuptial agreement stating that all houses will be divided evenly in a divorce, and I argue that I'll take the main house and the vacation house, while my wife takes the doll house and the bird house.... odds are that the judge is going to make an originalist/textualist arugement towards the generally understood meaning of those words at the time the contract was signed, unless I can producing some extraordinary evidence that my wife understood those to be "houses" for the purposes of the contract at the time of the signing (such as explicit letters or voice recordings to that effect). Whether or not some randomly selected schmoes off the street would say that a "bird house" was a "house" on an academic questionairre would never enter into it. If I argued that while clearly those were not considered "houses" when the document was signed, but that last year Merriam Webster changed things to make it clear that a bird house was a house, the judge wouldn't care in the least about that. The judge would care about either a) the standard, understood legal meaning at the time of the signing, b) the meaning as understood by the particular signers of the document at the time, if evidence about that was availible, or c) the understood legal meaning today (following precedence of legal decisions that occured between then and now). 

Although, admittedly, the judge could also care what they thought the law should do, based on some other agenda. For example, which decision most empowered historically disadvantaged people (as some liberal judges are asserted to think today), or which decision most allowed for issues to be worked out by the people rather than the law (as Oliver Wendel Holmes supposedly prioritized). But those types of agendas don't generally impact mundane legal issues. 

I mean... people say things like "how do we really know how a word was pronounced in Shakespear's time?" as if it is a vacuous mystery... but, in fact, pronunciation was non-standard enough at the time that playrights routinely included notes explaining how to pronounce particular words in the play. Similary, much of our law is surrounded by explicit, well documented discussions among those who were writing and signing the legislation. There is wiggle room in some places, but in other places we have very clear records of what was intended, and why particular words were chosen. 

The problem with Barrett's Originalism is that we have no key examples of it to evaluate. She has a nice array of legal papers (I've read a few of them), but doesn't have an extensive record of actually deciding cases. 

On Mon, Oct 19, 2020 at 9:55 AM glen <[hidden email]> wrote:

Amy Coney Barrett's "originalist" doctrine may sound good — but it's
incoherent
https://www.salon.com/2020/10/19/amy-coney-barretts-originalist-doctrine-may-sound-good--but-its-completely-incoherent/

Merely more fodder for "methods".

On Wed, 23 Sep 2020 06:39:13 -0400
David Eric Smith <[hidden email]> wrote:

> I don’t know how one defines it as a method, but the approach I
> usually hear contrasted with Originalism comes associated with
> “living document” language.

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