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As usual the opponents of originalism describe its very real detriment, that knowledge of history (and more specifically linguistic history / etymology) is vita

As usual the opponents of originalism describe its very real detriment, that knowledge of history (and more specifically linguistic history / etymology) is vital to originalism while failing to offer any alternative view that doesn't make the judiciary into a super-legislature. Ironically in this case they make a great case (in my naive opinion) for a valid originalist take to regulate weapons. If only the debate on the 2nd Amendment could be about these historical points instead of one side arguing for originalism with the other side arguing for a 'living constitution' where any debate about the original meaning of laws is irrelevant. Many might object at this point to say the the originalists are fake, they use the philosophy of originalism as a propaganda tool to pull the wool over the eyes of the masses. This argument holds no weight as long as the other side rejects originalism as a fundamental presupposition of jurisprudence. In other words, contemporary American politics gives you two options for viewing our current legal system: either it's a super-legislature where justices are just senators-for-life and can as a group overrule anything on a whim with no repercussions or it's a group whose job is to interpret the text of existing laws applying the intent of our real legislature to actual situations that occur. If the former, then our country has very little hope. If the latter then we can work together to get principled justices who care about textualism. The article is right that a textualist shouldn't always be allowed to interpret along the lines of what they think is right, but you can't throw out the baby with the bathwater! Their argument is: originalists are unprincipled therefore originalism is wrong. This holds no water for me.

capguy255 4y ago
How exactly does making historical, analogical arguments the center of judicial reasoning make the court LESS of a super-legislature? If nothing else, it makes the court MORE likely to be politically active so long as they can find a few pseudo-scholarly articles that make an argument for them. And that's remarkably easy these days when there are lots of ways to get published but far fewer institutions with the resources and time to check the historical scholarship for accuracy. "Originalism" and "textualism" are two different approaches to legal interpretation that can sometimes but not always overlap. Plenty of people who believe in a "living constitution" ground their reasoning in legal text. The innovation of originalist legal thought is that they realized so long as they can get enough activists onto law journals to write opinion pieces that make historical arguments, that judges can pretend to point backwards in time having clear-headed wisdom about what people thought "back then," without any clear and objective criteria that can be used to justify the decision or distinguish situations. In originalism, the law becomes completely arbitrary and based on whichever flavor of the day scholarship judges decide to cite -- even if it's obscure, historically inaccurate, or written from a clearly biased activist perspective. Ginning up creative ways to reach your preferred outcome and then pretending it's a one-off and so you don't need to explain the logic is a far more political way of making decisions than to ground judicial decision-making in precedent from past legal decisions and from actual text that have to be tested for relevance and accuracy.
- AnimalMuppet 4y ago
  You seem to be saying that all originalism must be fake, a cover for political bias. You fell into the GP's third paragraph. Without ever even attempting to refute it, you just restated the position. GP had a point. You didn't answer it at all. Both GP and I assert that a principled originalism is possible, one that is not just a cover for political bias, and that such is superior to a super-legislature. Do you have any answer for our position? "These guys are using originalism as a cover for their bias" isn't an answer. (Unless you're asserting that a principled originalism is impossible - which you haven't stated, let alone supported.)
  - capguy255 4y ago
    You seem to be trying to make my argument into a strawman, and throwing around words like "principle" and "politics" as though they are magic incantations that shut down debate. My argument is a) textualism and originalism are distinct (you don't refute that) and b) judicial reasoning based on precedent and text is more reliable and workable than attempting purely historical analysis (again, you don't refute that either.) I'm happy to defend that. Instead of asking me to debate myself, it would be interesting to hear an actual effort to defend originalism. How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record? Originalists aren't bound by past judicial decision making -- every case is a blank slate where the job of the judge is to evaluate the current case against the history of the law, not the history of the court. OP's point was that judges should not be political, and to that extent -- other judicial philosophies are better at constraining politics than originalism. As to if originalism can produce correct results -- judges can have all of the "principle" in the world, but if they approach law from a broken framework that isn't bound by consistency, the law ends up being a hodge-podge of logically inconsistent decisions with efforts at distinguishing one case from another, and principle ends up being for naught. Ad-hoc historical reasoning should be the realm of politicians and advocates rather than judges.

capguy255 4y ago

How exactly does making historical, analogical arguments the center of judicial reasoning make the court LESS of a super-legislature? If nothing else, it makes the court MORE likely to be politically active so long as they can find a few pseudo-scholarly articles that make an argument for them. And that's remarkably easy these days when there are lots of ways to get published but far fewer institutions with the resources and time to check the historical scholarship for accuracy. "Originalism" and "textualism" are two different approaches to legal interpretation that can sometimes but not always overlap. Plenty of people who believe in a "living constitution" ground their reasoning in legal text. The innovation of originalist legal thought is that they realized so long as they can get enough activists onto law journals to write opinion pieces that make historical arguments, that judges can pretend to point backwards in time having clear-headed wisdom about what people thought "back then," without any clear and objective criteria that can be used to justify the decision or distinguish situations. In originalism, the law becomes completely arbitrary and based on whichever flavor of the day scholarship judges decide to cite -- even if it's obscure, historically inaccurate, or written from a clearly biased activist perspective. Ginning up creative ways to reach your preferred outcome and then pretending it's a one-off and so you don't need to explain the logic is a far more political way of making decisions than to ground judicial decision-making in precedent from past legal decisions and from actual text that have to be tested for relevance and accuracy.

AnimalMuppet 4y ago
You seem to be saying that all originalism must be fake, a cover for political bias. You fell into the GP's third paragraph. Without ever even attempting to refute it, you just restated the position. GP had a point. You didn't answer it at all. Both GP and I assert that a principled originalism is possible, one that is not just a cover for political bias, and that such is superior to a super-legislature. Do you have any answer for our position? "These guys are using originalism as a cover for their bias" isn't an answer. (Unless you're asserting that a principled originalism is impossible - which you haven't stated, let alone supported.)
- capguy255 4y ago
  You seem to be trying to make my argument into a strawman, and throwing around words like "principle" and "politics" as though they are magic incantations that shut down debate. My argument is a) textualism and originalism are distinct (you don't refute that) and b) judicial reasoning based on precedent and text is more reliable and workable than attempting purely historical analysis (again, you don't refute that either.) I'm happy to defend that. Instead of asking me to debate myself, it would be interesting to hear an actual effort to defend originalism. How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record? Originalists aren't bound by past judicial decision making -- every case is a blank slate where the job of the judge is to evaluate the current case against the history of the law, not the history of the court. OP's point was that judges should not be political, and to that extent -- other judicial philosophies are better at constraining politics than originalism. As to if originalism can produce correct results -- judges can have all of the "principle" in the world, but if they approach law from a broken framework that isn't bound by consistency, the law ends up being a hodge-podge of logically inconsistent decisions with efforts at distinguishing one case from another, and principle ends up being for naught. Ad-hoc historical reasoning should be the realm of politicians and advocates rather than judges.