[FRIAM] constructionism, textualism, and originalism

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Excellent! That helps. It seems reasonable to think one can be a "living document textualist". I.e. you first identify the (perhaps wide-ranging) set of relevant *enacted text*. Then you have some rules by which you apply/infer meaning and implications of that text. An originalist would differ from a livingist by grounding the text to the historical context in which it was enacted versus the current context, respectively. I think the categories aren't disjoint, though. My guess is both types would *have* to do some translations like your example of "nice". You can't do either context-grounding without some translation. So, it's more like a bias than a category.

Re: "the law" -- The entry on constitutionalism in my "American Conservatism" encyclopedia claims that the modern conception of a constitutional government is to *limit* the power of the government w.r.t. the governed individuals, most obviously in the separation of powers. And the author of the entry (Whittington) goes on to assert that a US addition to the modern conception is "the notion of the constitution as a fundamental law." What this might mean for the above context grounding would be something like an "upper ontology" https://en.wikipedia.org/wiki/Upper_ontology. The core facility of ontologies is the ability to (semi-automatically) translate from one lexicon to another, identifying the same concepts in spite of variation in the words used. If constitutions *are* some type of mechanism for objectively distinguishing *scopes* (individual vs. government), then what we mean by "law" is only *indicated* by the text, not ensconced *inside* the text ... some kind of indirect, Platonic, non-naive realist structure we're approaching with our various text documents.

Re-reading that entry resuscitated the question about what freedoms the Democrats are trying to take away. Do *laws*, by which I mean that objective referent of the texts, primarily expand or limit freedoms? Laws like Obamacare seem to expand positive freedom *via* the negative freedom from (e.g.) pre-existing conditions. But conservatives hate Obamacare for some bizarre reason. And this takes me back around to the irritating question about mathematics, is it invented by us? Or discovered by us? Are laws something fundamental to the composition of collectives from individuals that we're discovering? Or are they prescriptive, arrogant attempts to *engineer* the world, imputed by the charismatic/influential/facile among us? If we could answer that, we'd have some hints to your question about parties vs. orthogonal access to the state of society.


p.s. I've long been confused by the uptake of Maturana and Varela's autopoiesis by legal scholars. Why would they be attracted to what seems like theoretical biology to me? But perhaps there's more to the relationship between science and law than I've ever thought to be the case? Is law a kind of sociology? If so, then "theoretical law" and theoretical biology might not be so different. 



On 9/23/20 3:39 AM, David Eric Smith wrote:
> 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.

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