[FRIAM] Calling Bullshit

[Marcus Daniels]

Another great tradition is naming a flawed thing to give it more legitimacy than it deserves.

From: Friam <friam-bounces at redfish.com> On Behalf Of Eric Charles
Sent: Monday, September 13, 2021 9:30 AM
To: The Friday Morning Applied Complexity Coffee Group <friam at redfish.com>
Subject: Re: [FRIAM] Calling Bullshit

"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.



On Mon, Sep 13, 2021 at 12:13 PM Marcus Daniels <marcus at snoutfarm.com<mailto: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<mailto:gepropella at gmail.com>> wrote:
>
> On 9/13/21 8:14 AM, thompnickson2 at gmail.com<mailto: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.
>
>
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