[FRIAM] constructionism, textualism, and originalism

[Eric Charles]

That article is baffling. Just because a method is hard doesn't mean it is
an invalid method. Also, the focus on the particularly contentious issues
masks the broad agreement about what most of the constitution meant at the
time. We focus so much on the ideologically split decisions, but it is not
unusual to have a year with 50% unanimous SCOTUS decisions (orange line
below), and the number of decisions that split 5-4 between the "liberal"
and "conservative' justices is small. In fact if you look at the graph with
just one green line, it shows the number of configurations that made up 5-4
decisions during the term in question; in the final year shown (2018) every
"conservative" justice served as a "swing vote" siding with the "liberal"
justices for at least one decision, and vice versa.

Also, beyond that, nothing in the article is about "*Barrett's *Originalism."
It is broadsided attack about whether we can ever know what anyone meant by
anything.

I mean, if I go before a judge with a prenuptial agreement stating that all
houses will be divided evenly in a divorce, and I argue that I'll take the
main house and the vacation house, while my wife takes the doll house and
the bird house.... odds are that the judge is going to make an
originalist/textualist arugement towards the generally understood meaning
of those words at the time the contract was signed, unless I can producing
some extraordinary evidence that my wife understood those to be "houses"
for the purposes of the contract at the time of the signing (such as
explicit letters or voice recordings to that effect). Whether or not some
randomly selected schmoes off the street would say that a "bird house" was
a "house" on an academic questionairre would never enter into it. If I
argued that while clearly those were not considered "houses" when the
document was signed, but that last year Merriam Webster changed things to
make it clear that a bird house *was *a house, the judge wouldn't care in
the least about that. The judge would care about either a) the standard,
understood legal meaning at the time of the signing, b) the meaning as
understood by the particular signers of the document at the time, if
evidence about that was availible, or c) the understood legal meaning today
(following precedence of legal decisions that occured between then and
now).

Although, admittedly, the judge *could *also care what they thought
the law *should
*do, based on some other agenda. For example, which decision most empowered
historically disadvantaged people (as some liberal judges are asserted to
think today), or which decision most allowed for issues to be worked out by
the people rather than the law (as Oliver Wendel Holmes supposedly
prioritized). But those types of agendas don't generally impact mundane
legal issues.

I mean... people say things like "how do we really know how a word was
pronounced in Shakespear's time?" as if it is a vacuous mystery... but, in
fact, pronunciation was non-standard enough at the time that playrights
routinely included notes explaining how to pronounce particular words in
the play. Similary, much of our law is surrounded by explicit, well
documented discussions among those who were writing and signing the
legislation. There is wiggle room in some places, but in other places we
have very clear records of what was intended, and why particular words were
chosen.

The problem with *Barrett's* Originalism is that we have no key examples of
it to evaluate. She has a nice array of legal papers (I've read a few of
them), but doesn't have an extensive record of actually deciding cases.

[image: image.png]

[image: image.png]
<echarles at american.edu>


On Mon, Oct 19, 2020 at 9:55 AM glen <gepropella at gmail.com> wrote:

>
> Amy Coney Barrett's "originalist" doctrine may sound good — but it's
> incoherent
>
> https://www.salon.com/2020/10/19/amy-coney-barretts-originalist-doctrine-may-sound-good--but-its-completely-incoherent/
>
> Merely more fodder for "methods".
>
> On Wed, 23 Sep 2020 06:39:13 -0400
> David Eric Smith <desmith at santafe.edu> 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.
>
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