[FRIAM] constructionism, textualism, and originalism

[David Eric Smith]

Hi Glen,

I don’t know how one defines it as a method, but the approach I usually hear contrasted with Originalism comes associated with “living document” language.  The idea being that any legal statement cannot take any meaning but in the context of its time (socially accepted norms, available knowledge of facts, social and material technologies and institutions, demographics and conditions of living, etc.), and that if those conditions have changed, there is no sensible way in which an appropriate meaning of a text can be derived without reference to the current context.

This seems to me sort of obvious and inescapable, in the sense that pre-Shakespeare, one would have used “nice” to mean a sharp, burning or cutting pain, but to expect or demand that everyone who heard the word today know that that was its intended meaning would be absurd.  Likewise that “people” in “we the people” meant the anglo male landed gentry of the time, as opposed to “people” as the term would be used in non-Republican society today.  

An interesting problem this poses for me is how correctly to make the argument that a constitution should be a reasonably-stable, but reasonably-adaptable, document to reflect the sense of right in the society of its time, but not be tossed around by the winds of populism or fads or momentary cultural battles like identity contests or post-modern depredations of everything.  To assert that the court should be responsive to the norms of the day, but that it should not be politicized (in the sense of, just an effector arm of political parties), when parties are the overwhelmingly dominant organizational structure throughout the modern era in the US, seems to be saying that the SCOTUS should have an independent, parallel, distributed sensor network to the state of the society, somehow protected from this massive gorilla of a power structure that has come to subsume every other institution.  I like the idea of autonomous, parallel, distributed channels, but how to design one is not a question on which I think I have insight.

Eric



> On Sep 22, 2020, at 3:02 PM, uǝlƃ ↙↙↙ <gepropella at gmail.com> wrote:
> 
> 
> Jack (I think) suggested recently that there's a problem with "originalism". I can't remember whether his complaint was that it's a flawed concept, in itself, or that it's simply a pretense by which a justice justifies their own meaning for a given law by yapping about the "intentions" of the authors/adherents/enacters [⛧]. Correct me if I've screwed it up, Jack. It seems completely reasonable to me that a judge (or justice) would start out with and evolve a typical "method" by which they do their job. So, it's unclear to me what's wrong with originalism or textualism. (My brief googly suggested there are flaws with "strict construction". So, maybe we can ignore that one.)
> 
> This article <https://www.salon.com/2020/09/22/trump-supreme-court-front-runner-amy-coney-barrett-belongs-to-group-that-inspired-handmaids-tale/> claims Judge Barrett is a "strict constructionist", by which I'm guessing he means she's really either originalist or textualist.
> 
> But what I'm missing are the *other* "methods". What contrasts with originalist and textualist? Any clues for the clueless would be very welcome.
> 
> 
> [⛧] There's a word out there that I'm spacing. What's a synonym to "swear by", like when you say you "follow a creed" or whatever?
> 
> -- 
> ↙↙↙ uǝlƃ
> 
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