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Originalism — A Blast From the Past

Recently, there’s been a lot of discussion of the problems with originalism as a doctrine of jurisprudence. Here’s one example:

The paper [the NY Times] annotated the Dobbs majority decision with its own analysis, pointing out that Justice Alito’s argument is grounded in originalism, which it puts “in contrast to the more liberal interpretative method that views the Constitution as a living document whose meaning can evolve with society.” But originalism, as many have noted, is a flimsy legal framework, not a robust legal structure. It can justify anything and nothing at all.

Exactly. But I’m in a churlish, underappreciated mood. So here are some nearly 20 year-old excerpts on the subject of originalism from my now dormant solo blog.

August 7, 2003from “Bach and Scalia

Originalism, like fundamentalism, is a modern movement that selectively chooses which texts to honor over others or which portions of which texts to honor over others. 

All reading, no matter how rigorous, requires interpretation.* One would have thought this was so obvious that it doesn’t bear pointing out. But occasionally, some clown like Scalia claims a mystical access to The Truth and the point has to be made again. 

Please somebody give me an interpretation doctrine that has objective limits other than originalism and textualism. Scalia’s defense of originalism is otherwise unrefuted. “

No such thing as an “intepretation doctrine.” No such thing as “objective limits…”

Regarding interpretation: interps are useful only to the extent they are contingent (and yes, this assertion is self-contradictory: so what? It’s still true.). Culture, society, consensus, dispute, etc. determine the correctness of an interp, which can, must, and will change as society changes. Very little in human discourse can be decided by fiat once and for all. Even [Leo] Strauss… if you read him carefully, admits as much. Originalism is a doctrine that does indeed argue from a spurious intentionality and tries to reify language, which as Lewis Carroll convincingly demonstrates, is a pipe dream. 

. Just as there is no definitive interpretation of the Goldberg Variations, there can be no definitive interpretation of the law. There are many valid and invalid interpretations of both and the determination of the status of an interpretation is no more and no less than a contingent one, subject to infinite revision and refinement. 

*Certain scientific texts and theorems may be unambiguous in a way that precludes interpretation. Those texts, however, are written in a specialized language, ie math, and are not relevant to the exegesis of legal or theological texts.

A brief dilation on my assertion (made in response to an originalist in a comment) that there is no such thing as an “assertion doctrine” or “objective limits.” Originalists clearly choose which texts to anoint with their originalist juju and then suppress others. That is clearly as abitrary and non-objective an “assertion doctrine” as any other. Why? Because the limits on which texts get chosen are ones that are set by those who determine the relevance and validity of the texts through an interpretative procedure contingent on their thoughts, concerns, principles, values, training, and ignorance of the full extent of texts available. There is nothing remotely “objective” going on in originalism. In short, originalism is as much based on interpretation as any other approach to reading the law. And it always must be.

It is a source of wonder to me that anyone ever took originalism seriously. It is also a source of wonder to me that no one in a position of authority (law degree, training in philosophy, huge public presence — i.e., not a mere blogger who can simply see the obvious flaws in originalism) ever bothered to publicly and consistently and loudly excoriate originalism’s pseudo-intellectual pretenses when it would have made a difference.

And here we are.

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