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Agreed that the constitutional ratifiers wouldn't agree on a lot of modern constitutional cases; and that their original intent (what they were thinking of, spe

Agreed that the constitutional ratifiers wouldn't agree on a lot of modern constitutional cases; and that their original intent (what they were thinking of, specifically) when they wrote it would not fully suffice to provide application in modern cases, since they couldn't have thought of all the situations we're dealing with. However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases. > Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text. I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary. In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.

jaredklewis 8y ago
I don't think we're so far off. Of course I wouldn't object that there are certain principles in the constitution, that are relatively constant. But constitutional cases tend to deal with a lot of specifics. How much bail is "excessive"? How long until a trial has not been "speedy?" When is "due process" satisfied? If we were to ask these and similar questions to Madison, I think his answer would be something like, "the courts should figure that out." I don't think the meaning of these things has changed significantly over time. I suspect they were as broad and vague in the mind of Madison as they are to us. The courts should rule in a way that is in keeping with constitutional principles, but also that creates good outcomes. The first part of that equation comes from the constitution and the past, yes. But the second part requires that we apply knowledge from the present.
- TimTheTinker 8y ago
  Sounds like we agree quite a bit. Even so, I’m often deeply disappointed in outcomes of constitutional cases (and government behavior in general) because it seems like they’re often “thinking too hard” or failing to courageously apply a simple, straightforward, and apparent reading. I’m a fan of Gorsuch because he doesn’t seem to do that... Originalism as I see it is the opposite of open text jurisprudence, where the text is viewed through modern values and assumptions and made to bend to them.
  - matthewdgreen 8y ago
    So what do you think would be the originalist position on cellphone* tracking without a warrant, and how does this square with the dissents in this case? * Feel free to replace cellphone with "magical device almost everyone carries that constantly reports their precise location to a register that stores it for up to five years". :)

jaredklewis 8y ago

I don't think we're so far off. Of course I wouldn't object that there are certain principles in the constitution, that are relatively constant. But constitutional cases tend to deal with a lot of specifics. How much bail is "excessive"? How long until a trial has not been "speedy?" When is "due process" satisfied? If we were to ask these and similar questions to Madison, I think his answer would be something like, "the courts should figure that out." I don't think the meaning of these things has changed significantly over time. I suspect they were as broad and vague in the mind of Madison as they are to us. The courts should rule in a way that is in keeping with constitutional principles, but also that creates good outcomes. The first part of that equation comes from the constitution and the past, yes. But the second part requires that we apply knowledge from the present.

TimTheTinker 8y ago
Sounds like we agree quite a bit. Even so, I’m often deeply disappointed in outcomes of constitutional cases (and government behavior in general) because it seems like they’re often “thinking too hard” or failing to courageously apply a simple, straightforward, and apparent reading. I’m a fan of Gorsuch because he doesn’t seem to do that... Originalism as I see it is the opposite of open text jurisprudence, where the text is viewed through modern values and assumptions and made to bend to them.
- matthewdgreen 8y ago
  So what do you think would be the originalist position on cellphone* tracking without a warrant, and how does this square with the dissents in this case? * Feel free to replace cellphone with "magical device almost everyone carries that constantly reports their precise location to a register that stores it for up to five years". :)