[FRIAM] Calling Bullshit

[Eric Charles]

"Originalism", in this context, is a label for a particular tradition of
textual interpretation, when faced with current legal challenges. Haggling
over the exact label that would be appropriate isn't as useful as it seems.
The tradition in question strives to determine the intent of the laws at
the time of its writing and/or the implications that the word and phrase
choices would have had at the time of the writing. That such an approach is
inherently imperfect is of no real consequence, as no approach is going to
be executed perfectly. The intent stands as the intent, regardless of
whether it can ever be perfectly achieved.

There is nothing inherently "timeless" about a statement that because
militias are important to maintain we should have the right to bear arms.
In fact, there is a clear political process (constitutional amendment) that
can alter that text at any time. The Judicial approach in question holds
that, until such a time as there is sufficient will to change the text, the
text stands, as designed at the time. If we modified the 2nd Amendment at a
Constitutional Convention next year, all "originalist" justices, moving
forward, would try to determine how the intent of that new phrasing, as
understood in the year 2022, was relevant to legal challenges that were not
anticipated at the time of the new-Amendment's writing.

I'm not saying that's the best approach available, just that it is
coherent, and well understood within the legal profession.


<echarles at american.edu>


On Mon, Sep 13, 2021 at 12:13 PM Marcus Daniels <marcus at snoutfarm.com>
wrote:

> If one “read through” to a timeless intent, then how is originalism,
> original?   It implies that deconstruction is unwelcome beyond some point.
> That it is essentially a religion.
>
> > On Sep 13, 2021, at 8:43 AM, uǝlƃ ☤>$ <gepropella at gmail.com> wrote:
> >
> > On 9/13/21 8:14 AM, thompnickson2 at gmail.com wrote:
> >> Glen, I wonder what ACB thinks "pragmatism" is.   Holmes was a prime
> member of the Metaphysical Club with Peirce and James.  Was he a Judicial
> Pragmatist?  On Comey's account?  I would love to know.  Thing we have
> learned is that a besotted person is a besotted person first and last, no
> matter how intelligent they are.
> >
> > Yeah, I thought her [ab]use of the term might trigger you. I think her
> usage is just fine. Were she at my pub, I'd ask what the difference is
> between being pragmatic and being "textual" ... those liberal justices are
> probably "postmodern marxists". Pffft.
> >
> >> On 9/13/21 8:14 AM, Marcus Daniels wrote:
> >> Being an 'originalist' is the sort of thing that bible school might
> teach one to do?
> >
> > I don't think so, at least not in a naive sense. I've never been to
> Bible School. But my Church of Christ friend claims they were taught to
> "read through" the text, like a good modernist. So, they were very tolerant
> of metaphor. The grape juice and crackers were *not* actual blood and
> flesh. At least *some* subset of the protestants aren't batsh¡t.
> >
> >
> > --
> > ☤>$ uǝlƃ
> >
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