Originalism January 23, 2010 11:40 AM   Subscribe

Originalism: Yay or Nay.

In an effort not to derail this awesome discussion, I want to bring a debate up on the grey. I'm legitimately interested in what Mefites have to say about Originalism, a theory that many might know since it has gained traction in Courts in recent years, especially thanks to the Federalist Society and Justice Scalia on the Supreme Court.

Originalism, in my poor attempts to describe it quickly, is the theory that the Constitution should be interpreted according to the original intent of the Founders. Originalists vary in their adherence to the theory: some people consider original intent to be merely one factor to consider when interpreting the Constitution, while “strict” originalists (like Scalia) see original intent as absolutely dispositive. That is, any textual ambiguity in the Constitution should be resolved soley on the basis of the Founder’s intents.

Here’s the Wikipedia page describing originalist theory.

I was just fairly interested in this debate, because in the above thread, some Mefite’s were

As I mentioned in the thread, I think that the founding father’s original intentions when writing the Constitution are certainly a factor to be considered when deciding Constitutional Issues, but I don’t think they are dispositive. Here are a few issues I have with the theory:

(a) For Originalism to be a valid theory, we must assume that we can accurately determine what the original intent of the founding fathers was. Can we actually figure out what these guys were thinking, 200+ years ago? And what if we today reach conflicting conclusions about original intent? It often seems to me that Scalia gives himself a monopoly on the “correct” interpretation of original intent, often by brushing aside other’s attempts to interpret the Founders. (Look at his concurring opinion in Citizen’s United, for instance).

(b) What documents should we refer to in order to determine what original intent was? Obviously we can’t limit ourselves to the Constitution, since this is the document in question. Do the Federalist papers count? Personal journals of famous individuals? Correspondence? The minutes of the first congress?

(c) For Originalism to be a valid theory, we must assume that the Founders actually HAD a single, unified intent when creating the Constitution. Wasn’t the Constitution written by many different and competing factions, each with their own theory of what the government should be? Wasn’t the Constitution inherently and irrevocably a compromise? It might be silly to speak of “THE intent” of the founding fathers; maybe it should be “the various and competing intentions of various and competing members”. And what if the Founder’s intentions were actually to create an ambiguous and broad document, one that worked for now, but that the Founders wished to be interpreted according to the specific circumstances of the time? That is, what if the Founders actually intended future judges to debate and explore the meaning of the Constitution in relation to existing circumstances? Ronald Dworkin is the leading advocate of this theory.

Anyway, sorry to rant, but as I said, I have a lot of respect for the power and intellectual capabilities of the Hive Mind, and was wondering what conclusions others had reached.
posted by HabeasCorpus to MetaFilter-Related at 11:40 AM (20 comments total)

To be followed by: Left Hand or Right Hand?
posted by jonmc at 11:41 AM on January 23, 2010

no, Learned Hand!
posted by HabeasCorpus at 11:45 AM on January 23, 2010 [11 favorites]

To be followed by: Left Hand or Right Hand?

Just keep switching between them.
posted by Elmore at 11:49 AM on January 23, 2010

ok, fair enough. Maybe MetaTalk isn't the best place to have a discussion about a tangential legal theory...

/slowly retreats into the background.
posted by HabeasCorpus at 11:52 AM on January 23, 2010

Today is a strange day in MetaTalk.
posted by found missing at 11:55 AM on January 23, 2010 [3 favorites]

Day ain't over yet.
posted by jonmc at 11:59 AM on January 23, 2010 [3 favorites]

I heard there's a movie that says 911 might have been an inside job
posted by philip-random at 12:00 PM on January 23, 2010 [2 favorites]

Yeah, you could make a good FPP about this, but I don't think it's really right for MeTa.
posted by youcancallmeal at 12:01 PM on January 23, 2010 [1 favorite]

This has nothing to do with MeTa. I'd start an FPP about this.

Oh and originalism sucks. Really? Scalia thinks he has some sort of magical view into how the founders would deal with telecom law? Puhleeze. Not to mention that the "Founders" were far from one mind on anything. It is a really intellectually shallow way to try and win arguments.
posted by Ironmouth at 12:05 PM on January 23, 2010 [9 favorites]

This has nothing to do with MeTa. I'd start an FPP about this.

OK, fair enough. I've been a member for awhile, but I'm still learning the ropes about what's valid for Metatalk, since I haven't been reading it that long. I'll go make some research and tighten up my post, for a later date on the view. Mods can feel free to delete this post, if necessary.
posted by HabeasCorpus at 12:08 PM on January 23, 2010

make. Do. Whatever.
posted by HabeasCorpus at 12:10 PM on January 23, 2010

posted by Rhomboid at 12:12 PM on January 23, 2010 [11 favorites]

Irrespective of our ability to divine the original intent of the founders, the most obvious objection to Originalism is that America of today is a vastly, almost absurdly different place than it was when the Constitution was written, and it's not at all obvious that the founders would write the same constitution today if they were brought forward in time and shown multi-national corporations, assault weapons, the Internet and cell phone cameras, and DNA databases.

Originalism doesn't just pretend that the founders' intent is knowable, it pretends that their intent is still applicable.
posted by fatbird at 12:14 PM on January 23, 2010 [6 favorites]

Whenever people start talking about the "original intent of the founding fathers," I just have to chuckle -- because despite their obvious virtues, lots of them were BIG FAT SLAVEOWNERS. The original Constitution counted slaves as 3/5 OF A PERSON. Doesn't mean we need to throw the baby out with the bathwater, but I think that we can at least admit that returning to an 18-century mindset MAY NOT BE SUCH A GOOD IDEA IN ALL MATTERS CONSTITUIONAL.
posted by Afroblanco at 12:20 PM on January 23, 2010

What if the writers intended your constitution to be textually ambiguous? I mean, it might smack of Derridaism, but what if their intent was to hider their intent and allow you to read your own intent as their intent?

Think about it.
posted by Sova at 12:30 PM on January 23, 2010 [5 favorites]

Make that post, I'd love to read it and participate. Originalism really, really baffles me. True, it's just about possible to set aside the objection that the 18th-century mindset isn't appropriate to today by arguing that your job as a Supreme Court justice is to interpret what the Constitution means, not to tamper with your job description, and that the proper method for dealing with the Founding Fathers' most glaring problems is the process of constitutional amendment. But as far as I can tell, Scalia et al genuinely believe that their approach is less interpretative than the non-originalists — that they are somehow stepping aside from the process and letting the words of the constitution themselves do the talking. This is the kind of error of thinking of which most of us are disabused in those alcohol or pot-fuelled all-night conversations (about philosophy, the existence of God, classic children's television, etc) that you have in your first few weeks of college.
posted by game warden to the events rhino at 12:30 PM on January 23, 2010 [2 favorites]

This issue is handled most eloquently in Thomas Jefferson's foreword to America (The Book):
I was also looking forward to this opportunity to dispel some of the mythology surrounding myself and my fellow Founders—particularly the myth of our infallibility. You moderns have a tendency to worship at the altar of the Fathers. "The First Amendment is sacrosanct!" "We will die to protect the Second Amendment!" So dramatic. Do you know why we called the amendments? Because they amend! They fix mistakes or correct omissions and they themselves can be changed. If we had meant for the Constittution to be written in stone we would have written it in stone. Most things were written in stone back then, you know. I'm not trying to be difficult but it's bothersome when you blame your own inflexibility and extremism on us.
(With apologies to Jon Stewart et al.)
posted by Sys Rq at 12:32 PM on January 23, 2010

I'm a big fan of the Third Amendment. Defend your third amendment rights!
posted by game warden to the events rhino at 12:37 PM on January 23, 2010

I mean, it might smack of Derridaism, but what if their intent was to hider their intent and allow you to read your own intent as their intent?
What if they wrote it in a tent? Think about that! Brings a whole new meaning to the canvassing of opinion.
posted by Abiezer at 12:38 PM on January 23, 2010 [5 favorites]

HabeusCorpus, I'd agree that the thing to do here is see if you can find some strong, interesting links (e.g. not just wikipedia) on the subject and if so go ahead and make a post to the blue without the personal-opinion framing.

Taking a derail to metatalk is a good idea sometimes, but generally it's more to do with trying to divert a problematic derail than with trying to start/hold a conversation for its own sake. Not that there's anything wrong with wanting to do that, but it's not really what Metatalk is for and I think people are blinking at this because this feels like not so much "fine let's yell at each other here" as it does like "hey, this is an interesting thing to talk bout".

It can be sort of a blurry line, so don't worry about it too much in any case. But I'll go ahead and close this up.
posted by cortex (staff) at 12:42 PM on January 23, 2010 [1 favorite]

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