"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, March 11, 2015

Originalism isn't an ideology, it's a methodology

Here's a good observation over at the Volokh Conspiracy law blog that originalism in legal theory is a method and not an ideology:  There's no originalist consensus, but that's okay. Originalism isn't about pat answers, it is an approach to thinking through issues of constitutional and legal meaning when direct guidance from the text of the law is lacking.

6 comments:

Tim Kowal said...

Originalism? I guess. But what for? Legitimacy? Ha. Few think it legitimate. And that can go only so far as the practitioners are willing, & they ain't willing to strike down the admin state or incorporation or the aggregate effects doctrine. So you will never really get to the originalist status quo of a limited government. So we're just left making it up as we go along this new, expansive government narrative begun in earnest by FDR liberals and carried on by the new left. And to that extent, originalism's principal object is not to guide conservatives, but to encourage leftists to cabin themselves. And that's a fool's errand.

Tim Kowal said...

But since this blog is about seeking truth and not just finding error, structural change is the only answer: pack the court & end life tenure. The media would hate it most, which is the point. The court is just another reality show, except that it sets national policy.

Tom Van Dyke said...

"Living originalism." Yup. You can't make this stuff up.

http://originalismblog.typepad.com/the-originalism-blog/2015/03/nelson-lund-living-originalism-michael-ramsey.html

Mark in Spokane said...

Gentlemen,

Like any human theory, originalism is subject to abuse and distortion. While I wouldn't be quite so cynical as to dismiss legal interpretive theory altogether, it does help to take each theory with a grain of salt (which may be larger or smaller depending on the theory under inspection). I think originalism as a basic method is more defensible than other methods because it builds off the common task to interpreting legal documents drafted by earlier generations -- to come to an understanding of the intent of the drafters. It isn't perfect, but nothing in this life is -- one of the key reasons we should never let the idea of the perfect become the enemy of the good.

Tom Van Dyke said...

Well, "textualism" asks whether a law means what it says or what its "drafters" intended it to mean--or worse, what they'd would want it to mean today, if they were here.

However, that requires mind-reading, and a time machine. Helluva methodology.

Mark DeForrest said...

Originalism at least provides some discipline to the process of discerning drafter's intent. Your mention of textualism is interesting -- oftentimes originalism is joined together with textualism & strict constructionism, but as Russell Kirk pointed out they are all distinct approaches to interpreting legal texts. He's got some very good stuff on this point in his book not the Constitution, Rights & Duties.