Scott B. hosts the first of a two-part debate between liberal wacko John C. and his older, wiser, more conservative brother Robert. Today’s topic: The U.S. Constitution, and what YOU can (should?) do to save it.
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By Common Consent, a Mormon Blog 
That the D&C teaches that the Constitution is inspired is conspicuously absent in British Mormon religious discourse. Armand Mauss recently argued that it these types of doctrines which inhibit Church growth in some areas and he subsequently calls for reinterpretations of these doctrines. As such I was interested to hear Cole Durham emphasise the development of religious tolerance as the key ‘inspired’ component of the constitution as it applies to other nations. I suspect that this is an interpretation that British Mormons could respond positively to and so I wonder whether we can invoke Ronan’s ‘British Election Rule’ in order to question more seriously how this scripture applies internationally.
Aaron,
I would tend to agree, but there are reasons that notions of American exceptionalism appeal to American Mormons. The New Jerusalem will be here. The Book of Mormon describes our exit from those nasty Brits. For the American, devoted to thinking that the USA is special, there is plenty of scriptural evidence to be marshaled outside of the D&C. You would have to convince people to reinterpret all that effort, and I’m not sure the perceived benefit (cultural comfort of non-US members) would outweigh the perceived cost (American exceptionalism = God loves us the mostest).
In you then combine that with politics…
Not that you shouldn’t try, of course, nor that I shouldn’t help, but it will be a long, slow slog.
Aaron, I agree with you on how refreshing Cole Durham’s interpretation on these points was in his presentation in Oxford at this time last year.
This is also an approach taken by some others at BYU who as professors of history or political science find themselves in a position of addressing these doctrinal points in the context of their fields of discipline and similarly pinpoint the inspired elements to which scripture is referring in this pillar of toleration that hails from Locke, as well as the natural rights emphasized by Locke and others of the English and (to some extent) broader European Enlightenment.
My own view is that the US Constitution incorporates these principles, inherited from the stable and effective political institutions of England (representative democracy, common law judiciary, constrained executive authority) and the political philosophies of the English Elightenment (Lockean toleration, natural rights, etc.), into a simple and elegant framework that gives effect to these ideas in a more egalitarian and participatory system of government and ethos of civic republicanism than was possible in the England of the time period (for various socio-political reasons). These elements of toleration and natural rights, together with the framework itself that allows them to infuse all branches of government and sectors of society, are truly inspired. These elements are now incorporated into many other countries’ written constitutions, and are enshrined in supra-national constitutional documents such as the European Convention on Human Rights as well.
I also agree, however, with Madison, Adams, de Tocqueville and many others, that such a union of these inspired principles with the stable Anglo-American political institutions functions best in a society in which individuals possess a true spirit of civic republicanism. Thus, their presence in many countries’ written constitutions amounts to varying degrees of mere potential for an inspired result based on the extent to which those societies are composed of individuals with a strong sense of civic republicanism and whose lives overtly reflect those particular political virtues. Our own society in the United States also finds itself on a sliding scale of potential with regard to the inspired results that can be obtained through the functioning of our written Constitution based on these inspired principles, depending on how well we grasp and exhibit these political virtues in our own lives.
Scott and I were talking about this yesterday. We were wondering what the US Government was supposed to produce (I was trying to think economically). My best guess was “Good American citizens.” As John F notes, the constitutional government is necessarily all that successful at that task, but I think it does as well as any government and better than many.
I also want to point out that I have a good reason why the Founders opinions should be considered but not held paramount, but I was intimidated by everyone else on the podcast being prepared so I forgot it at the time. Will pontificate for food.
Actually, good American citizens produce the government, not the other way around.
As someone raised very much American with a healthy appreciation for the Founding’s core values (Lockean toleration and natural rights), I’ve always had difficulty conceptualizing the government as anything other than the people. As an adult I can now recognize that in some ways the government is actually separate from the people, though this is not ideal (I find it to be more the case in some other countries than in the US, although I am distressed to note that in the last couple of decades, particularly since 9/11 but also before that, the US government has been evolving into an entity that is “other” than the people). “Security” seems to be the wild card — in a society obsessed with it, the government becomes something other than the people and it is precisely “security” that becomes the justification for transgressing Lockean principles.
John C. (#2), there’s another possible reason according to Harold B. Lee: “I have often wondered what the expression meant, that out of Zion shall go forth the law. Years ago I went with the brethren to the Idaho Falls Temple, and I heard in that inspired prayer of the First Presidency a definition of the meaning of the term ‘out of Zion shall go forth the law.’ Note what they said: ‘We thank thee that thou has revealed to us that those who gave us our constitutional form of government were men wise in thy sight and that thou didst raise them up for the very purpose of putting forth that sacred document [the Constitution of the United States—see D&C 101:80] …
“‘We pray that kings and rulers and the peoples of all nations under heaven may be persuaded of the blessings enjoyed by the people of this land by reason of their freedom under thy guidance and be constrained to adopt similar governmental systems, thus to fulfil the ancient prophecy of Isaiah that “out of Zion shall go forth the law and the word of the Lord from Jerusalem.”’” (Ensign, Nov. 1971, p. 15; First Presidency quotation from Improvement Era, Oct. 1945, p. 564.)
R. Gary, but what does that mean in practical terms for the British? What is meant by ‘similar government systems’ in this instance? I think dropping this quote without any additional commentary adds little to the insightful comments John C. and John F. have provided so far.
Funny that you should mention that, Aaron. I wonder how many British know that their Magna Carta was part of the primary foundation of the Constitution.
I wonder how many British know that their Magna Carta was part of the primary foundation of the Constitution.
I don’t think the issue here is British ignorance of the US Constitution.
Dave P and R Gary: the point is that what is inspired about the US Constitution is (1) the principles of toleration and natural rights inherited from the English Enlightenment (as informed by centuries of development from the Magna Carta onwards) and (2) the Founders’ skill in incorporating these principles into a framework that united them as lofty principles to elegantly simple political institutions modeled on those existing in England to form a new synthesis that maximized the good aspects of both of those elements. To the extent that we as Americans do not recognize the English nature of our founding principles and documents, then it is a question of asking how many Americans (not how many British) know that the English Magna Carta was part of the primary foundation of the US Constitution.
We are five parts English Enlightenment in the United States and only one part French Revolution.
Just now downloading it. This should be fun.
I confess that the fact that the problem of internationalization of the Church with the Constitution-as-sacred didn’t come up in the podcast is my own fault. I had it on my list of things to mention, but somehow forgot about it.
However, the problem of international differences in Church policy applications comes up extensively in Part 2, which I’ll post sometime soon.
Monty Python, FTW!!
I thought Rob’s points were well-thought-out and articulate. Those other guys were bozos.
#13,
I apologize for the inclusion of bozos. Those responsible have been sacked.
Listening to the podcast, perhaps commenting as I go:
At 6:15, John says that his position is “not necessarily that the Constitution is a living document,” but then goes on to explain why he thinks any attempt to reconstruct an “original” meaning for the Constitution is impossible. In what sense, then, doesn’t he think that the Constitution is a “living” (that is, always-subject-to-evolving-interpretation) document?
At 10:45, Rob claims that the Constitution was, despite all the differences amongst those at the Convention, a “consensus” document that was signed by practically everyone who stayed through to the end, and which signaled a basic agreement on what the words so used. But this is untrue; not only did not everyone invited to the Convention attend (including such important revolutionary leaders as Samuel Adams and Patrick Henry), not only did Rhode Island refuse to send any delegates at all, but of the 55 delegates that attended, only 39 were willing to sign it. There was, in fact, significant disagreement about what the Constitution meant going into the Philadelphia Convention, and there was still significant disagreement going out.
At 18:27, Rob, while defending the idea that God inspired the U.S. Constitution while recognizing the less-than-ideal character of the compromise between the northern and southern states which allowed slave-owning states to include their slaves in their population (the “3/5th compromise”), said that God had to “work with what he had” when it came to slavery. But that perhaps isn’t true–He could have worked with Robert Carter III, a Virginia planter and scholar, a respected former colonial leader, a friend and contemporary of Thomas Jefferson, who freed all his slaves over the final two decades of the 18th century, at tremendous financial cost to himself. Indeed, God could have worked with any one of the dozens of influential southern planters who, in the years following the American Revolution, chose to free their slaves (and in many cases, provide for them financially). We here all about the “tragic dilemma” of those were tied up in slavery trying to accommodate themselves to the idea of “all men being created equal”, but that’s many because we hear about the Founders, not those southerners who actually, you know, followed through on their principles.
At 21:25, Rob asks if there were any contemporaries of Madison, Hamilton, or Jay (the authors of the Federalist Papers) who genuinely disputed what the words of the Constitution meant. But that’s kind of silly–John Marshall, who was a contemporary of Washington, Adams, Jefferson, and all the rest, very clearly articulated in his Supreme Court decisions massive areas of dispute amongst various Constitutional interpreters over the meaning of “interstate commerce” or the like, less than a decade and a half after the ink dried on the Constitution. The disagreements and contentiousness were present from the get-go.
Russell, I mean that the words of the document are set and not subject to change (outside of amendments). That said, I am probably much closer to a “living constitution” perspective than I had thought prior to doing this podcast. In part that’s because since all Americans are symbolic signatories to the document, we’ve all got a share in how it should be understood.
Obviously, the Federalist papers present what was the consensus view regarding what would get the Constitution passed (which is what I was trying to get across with my speechwriters comment). I’m glad that Russell is here to have my back regarding contentious dispute amongst the Founders.
At 26:35, Rob states that he thinks the Civil War amendments, numbers 13, 14, 15, “needed to be made.” Is he aware of the fact that it is the 14th Amendment, which has been read into the history of Constitutional jurisprudence as guaranteeing equal due process of the law to all people, which has become the foundation for most of the expansion of civil and economic rights and federal government authority over the decades? Someone who seriously believes that the original understanding of the terminology used in the Constitution ought to provide a guide to use today should actually strongly oppose the Civil War amendments, as it was they, more than any other change, which opened the door to profound alterations in our social contract.
At 31:42, Rob says “that’s why they [the authors of the Constitution] made the amendment process so hard”. Yet only a couple of minutes earlier, he was saying that rather than judicial interpretation and legislative evolution, he would prefer to see majorities of Americans use the amendment process to get the Constitution to say what Rob holds the original terminology doesn’t say. Isn’t this an easy, structurally anti-democratic escape clause for him? “Don’t use the Supreme Court, use the amendment process, which we all know is practically impossible to use?” If Rob is genuine in respecting the structure of the Constitutional, as opposed to the originalist content which he his attributing to it, then he would want to see some reforms in the operation of the government to make amendments with genuine plebiscitarian support more likely to pass muster, so interest groups wouldn’t make end runs to the Supreme Court in the meantime.
@ RAF: If Rob were here, I’m sure he’d thank you for reminding him of his woefully inadequate knowledge of the content of all of John Marshall’s opinions. However, in attempting to rectify this condition, he might come across this opinon of Marshall’s:
“To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; — is to repeat what has been already said more at large, and is all that can be necessary.” (Ogden v. Saunders in 1827).
On the subject of the Civil War amendments, he might comment that while subsequent interpretations of the 14th amendment may have gone beyond the original intent of that amendment, he still feels that a guarantee of equal protection under the law to all people regardless of race was a necessary addition to the Constitution. If he were here.
I think that, at the very least, I have discovered the key to getting RAF to listen to one of my podcasts.
At 33:20, John identifies himself as a “believer” in the place of the Supreme Court in providing judicial review; meanwhile, at 34:00, Rob says he’d rather the Supreme Court simply outright reject something on political grounds, rather than attempt to find constitutional reasons for doing so. Here, I agree with Rob, by way of disputing John’s beliefs, which is also a disputing of John’s beliefs. The fact is, whether John likes it or not, the Constitution which he idealizes (and partly as a result of that idealization) allows for a Supreme Court which can play a dominant role in our discussion of political issues, because of the trump card it can play in regards to reading the Constitution. The answer is not, as Rob images, some sort of “judicial conservatism” or “original interpretation”, both of which are nonsensical and without any real historical grounding; the answer, rather, is to get the hell rid of, or at least very seriously restrict, the power of judicial review. The UK’s parliamentary democracy, where a majority party’s political decisions do not have to strategize around a power-drunk Supreme Court, is a far more logical (and interestingly therefore, far more moderate) way of running a free country.
Scott, I have to say that tea joke was lame.
Aaron,
I’m with John Fowles in seeing a great deal of scope for British Mormons to respond positively to the American constitution given that it enshrines so many English notions from the Magna Carta to John Locke to the 1689 Bill of Rights. Indeed, if you listen to President Obama’s speech at Westminster today, he does just that. Sadly, I think most of our people don’t know John Locke from John Major and so it’s not a conversation, nor a celebration, we are really equipped to have.
Someone who is definitely not Rob,
That same decision also goes on to state that words are to be understood by way of their popular usage, “in the common affairs of the world”. I would argue that supports my reading of Marshall, over Rob’s hypothetical one. (And, of course, the fact that we are arguing over the meaning of the words of John Marshall, a contemporary to the authors of the Constitution, simply provides more evidence to my, and John’s, point.)
I know it was! I even meant to cut it out of the final edit, but figured that Crawdaddy would call me out on it anyway.
I am just a little bit into the podcast, so maybe this gets resolved a little later, but there seems to be a fundamental misconception of what constitutional originalism means. Or, rather, there are two possible forms of originalism, textualism or intentionalism. John C. is discussing intentionalism, and he is right that it is almost impossible to know with certainty what the Founders intended. However, most current originalists are also textualists, which means that what matters is not what the Founders intended, but rather what a reasonable person at the time the document was approved would have understood its terms to mean. That is a much more manageable task than determining intent. There is always some ambiguity and vagueness in language, but it is definitely possible to narrow the range of possible meanings, which precludes much of what “living constitutionalism” preaches.
I realize neither of the brothers is a constitutional scholar, so this is very useful window into how those who have an interest in the constitution but no formal training harbor fundamental misconceptions about constitutional principles.
What Fletcher said!
RAF,
you’re being uncharitable and/or unnecessarily defensive in some of your readings.
Rob, while defending the idea that God inspired the U.S. Constitution while recognizing the less-than-ideal character of the compromise between the northern and southern states which allowed slave-owning states to include their slaves in their population (the “3/5th compromise”), said that God had to “work with what he had” when it came to slavery.
Your rebuttal doesn’t make sense to me. A constitution, by its very nature, is a document that has to be broadly acceptable to the many. Pointing out a handful of saints who would make better signers would work if we’re dealing with a manifesto of some kind, but the constitution isn’t a manifesto. It’s a constitution.
Is he aware of the fact that it is the 14th Amendment, which has been read into the history of Constitutional jurisprudence as guaranteeing equal due process of the law to all people, which has become the foundation for most of the expansion of civil and economic rights and federal government authority over the decades? Someone who seriously believes that the original understanding of the terminology used in the Constitution ought to provide a guide to use today should actually strongly oppose the Civil War amendments, as it was they, more than any other change, which opened the door to profound alterations in our social contract.
I don’t even think I understand what you are trying to say. Are you suggesting that anyone who is committed to interpreting constitutional meaning as originally understood must be against amendments? Are you suggesting that anyone who supports the civil rights amendments is logically compelled to accept all subsequent judicial interpretations of them? I dont’ follow you.
answer is not, as Rob images, some sort of “judicial conservatism” or “original interpretation”, both of which are nonsensical and without any real historical grounding; the answer, rather, is to get the hell rid of, or at least very seriously restrict, the power of judicial review
Speaking of nonsense . . . as it happens, I agree with you that structural checks on judicial review would work much better than an ideology of ‘original understanding.’ But your outright dismissal of one of the major modern strains of jurisprudence is, well, nonsense. A guy who can find it in his heart to understand the seccessionist argument should be able to acknowledge the good points in a jurisprudence held by many of his fellow Americans, including various serious scholars. You can do better, Fox.
Justkidding,
you’re right, of course, but have you looked at Steve Smith’s essay on the subject? He argues that getting into the originalist weeds was probably a mistake:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1150447
At about 27:00, Rob laments the specter of judges tinkering with interpretive understandings that are a century old. At the risk of pointing out the obvious, let me just say that this amounts to a gripe about judges failing to respect precedent, which is a radically different critique than one which laments judicial disrespect of original understanding, and is often going to be a thoroughly incompatible critique at that.
Adam, it had been some time since I read it, so I went back and browsed through it. As is always the case, Smith has his own views on originalism, but that doesn’t mean that he’s right. Originalism is not easy, but that is because of the nature of language, not because the concepts are so terribly difficult. Originalism, at least the textualist variety (Smith would call it the second phase), looks for nothing more than the common understanding at the time. The notion that only judges and smart lawyers have anything to say about that is contradictory; judges and lawyers may be better at digging up contemporary references, but once the contemporary references are available, there is no reason to suspect that a judge or lawyer, armed with an overabundance of theoretical tools, would be more likely to arrive at the correct answer. Common sense plays a large role, and I’ve had my suspicions for some time that those who espouse a living constitutionalism really fear the influence of real common sense, as opposed to imposition of some estimation of society’s evolving values by an elite.
Adam,
You make some fair points in your response.
A constitution, by its very nature, is a document that has to be broadly acceptable to the many. Pointing out a handful of saints who would make better signers would work if we’re dealing with a manifesto of some kind, but the constitution isn’t a manifesto. It’s a constitution.
True–but remember that the provenance of my comment was Rob’s claim, in line with his general defense of the idea that the Constitution, meaning the words that actually came out of the give-and-take of the Philadelphia convention, was inspired by God, despite the 3/5ths compromise, because God “had to work with who He had.” Now explain to me how that actually makes sense, assuming you believe (as Rob appears to) in an omniscient and intervening God. God opposed slavery, God wanted the United States of America to come together under the Constitution, yet God was incapable of bringing to the fore men capable of both supporting the Constitution and opposing slavery at the same time? If such is the case, then it seems to me you’re dealing with a rather weak notion of “inspired”, so weak that many of Rob’s complaints about a “living Constitution” would appear to lose their force. (Rob would be on more consistent ground if he argued that perhaps God didn’t want the nation to resolve slavery at that point, and that maybe God’s purposes were better fulfilled by the Civil War later on, but he doesn’t claim that; on the contrary, he claims that obviously God considers slavery an evil, but his hands were tied because the manpower just wasn’t available.)
Are you suggesting that anyone who is committed to interpreting constitutional meaning as originally understood must be against amendments? Are you suggesting that anyone who supports the civil rights amendments is logically compelled to accept all subsequent judicial interpretations of them? I don’t follow you.
In the first case, no, and I don’t think what I wrote can be legitimately read that way. In the second case, also no, though there I recognize that my desire to make a political point interfered with my argument. The roots of Rob’s complaints with much judicial interpretation of the Constitution obviously begin with the expansion of the federal governments claims to power over personal, local, and business liberties, in the name of overarching goals such as civil rights, economic justice, and so forth. Well, those judicial interpretations overwhelmingly find their roots in the 14th amendment–which Rob (and here I, again, perhaps to my discredit, attempt to hang him upon his own petard) had argued “had to be done”. In other words, the Constitution whose original meaning he reveres had to be changed so as to make possible meanings that were not part of the original document. At the very least, a problematic claim.
I agree with you that structural checks on judicial review would work much better than an ideology of ‘original understanding.’ But your outright dismissal of one of the major modern strains of jurisprudence is, well, nonsense. A guy who can find it in his heart to understand the seccessionist argument should be able to acknowledge the good points in a jurisprudence held by many of his fellow Americans, including various serious scholars.
My claim that “original understanding” (which, pace justkidding’s comment at #29, I ought to have specified as “original intent”, which whether he fully appreciates it or not pretty clearly seems to be the theory of interpretation which Rob subscribes to) is nonsensical is one that I’ll stand by, Adam; I just don’t know of any way of thinking about history, language, or human psychology that would make the notion that one can or should recover from documentary evidence the intent of the Founders even remotely sensible. As for being “without any real historical grounding”, I’ll cop to some hyperbole there; obviously there have been, and will continue to be, judges that have and do claim to discern the “intent” of the Founders in certain lines of the Constitution. But when even very strict textualists see little or no validity in such readings, I think one can get away with at least a little hyperbole.
The Smith paper looks interesting, by the way; thanks for the link.
Russell,
I’d have to go back and listen to be sure (which I don’t want to do), but I think you misunderstand Rob when you cite him, at #24, as
“say[ing] he’d rather the Supreme Court simply outright reject something on political grounds, rather than attempt to find constitutional reasons for doing so.”
What I suspect Rob meant in that exchange was that if Judges want to express disapproval over, say, a particular piece of legislation, they should should feel free to do so in their opinions, but nevertheless refrain from using their disapproval as a springboard from which to make rulings of dubious constitutionality. Rob might have cited, say, Justice Thomas’ dissent in Lawrence v. Texas, in which Thomas flatly disparages Texas’ anti-sodomy statute (I believe he acknowledges he never would have voted for it as a legislator), while nevertheless dissenting from the ruling which overturns it, on the ground that there is no plausible constitutional ground for finding a right to gay sex.
Whatever one makes of originalism, Thomas, Lawrence, or gay sex, I suspect Thomas’ vocalized disapproval of the Texas statute is the sort of “politics” Rob had in mind. That is, something that definitely falls short of a serving as a basis for a constitutional opinion.
I promise I didn’t use the Lawrence decision as a pretext for injecting gay sex into the discussion. Thomas’ dissent is really a well-known example of how to acknowledge one’s politics in an opinion without having them influence your ruling. At least to many originalists and/or fans of Thomas. Assuming I’m reading Rob right — and I think I am — it actually is a good example of the point I was trying to make to Russell.
…which is another way of saying that John & Rob are dum-dums.
No, Scott, I reserve that title exclusively for hosts… :)
Actually, I make the same arguments when it comes to economics, in that many people know just enough about economics to be dangerous. They know the terms, and have a general idea of what the terms mean, but their application of the terms to specific circumstances makes clear they don’t know as much (or at least as deeply) as they think. There’s no shame in not being formally trained, as long as you don’t hold yourself out as an expert.
I enjoyed the discussion, and found I usually agreed with neither one.
Though justkidding makes some good points, Scott. It’s hard to find many modern originalist scholars who will try to defend “original intentions originalism” (as it’s often called) from critique. Meanwhile, this is the version of originalism that most laymen and some political pundits (on both sides) still defend or attack in their arguments. As we see with Rob in this podcast.
The debate over “original intentions originalism” is dead. Scalia, for example, hasn’t believed in the notion in decades (and he’s largely responsible for its demise). The scholarly debate is all about the original understanding of the actual textual provisions in the minds of your average Joe back in the day. Whatever the strengths or weaknesses of that particular originalist method, it’s the dominant one nowadays.
justkidding (39),
I meant the above as a tongue-in-cheek poke at John & Rob, but omitted the smiley face by accident.
Could not have said it better myself…
justkidding and Aaron,
I certainly don’t consider myself an expert. To a great degree, I’m glad that I am beating a dead horse (because it doesn’t deserve to live). And I am doubtless a dum dum.
If nothing else, I hope that Rob and I model the kind of conversations that take place throughout the church on this topic. If our mistakes lead to better education, that’s good stuff.
That said, I worry that an attempt to recreate the original textual meaning is not nearly as removed from an intent to recreate the original mindset as our lawyers seem to think. But, I’m not a lawyer and the distinction may be lost on me.
Ronan (#26), unfortunately I am one of those woefully ignorant people. I had presumed that the US Constitution was more Montesquieu than Locke. However, with that said, I think there is real value in considering what in the Constitution can and should be applied internationally. That discussion could be a useful way of framing the debate for American as well as international Mormons. I also agree that British Mormons should be better informed on these particular issues.
John, it isn’t THAT far removed, true. Some of the critiques applicable to the one are applicable to the other, and some aren’t. A long conversation, for sure.
Justkidding (#29): FWIW, regarding the new form of originalism, Saul Cornell made an argument against it here: http://hnn.us/node/138935
John C (42):
I’m curious why you think the attempt to determine the common meaning of a text at its origin is essentially the same as attempting to determine the intent of those who wrote it. Or, if you’d prefer, why the two are “not nearly as removed” from each other (that’s not a very precise comparison, so I’m not sure how to gauge your viewpoint). We have a multitude of textual references from the time, since the period has not yet faded into the ancient past. We also have specific texts documenting the debates that were had, both in convention and in the public forum, and seeing how those who weren’t at the signing viewed the text in light of their understanding. To me, that seems a far different thing than attempting to illuminate the intentions of those who wrote the text.
Oops, I should have linked to the complete essay: http://dissentmagazine.org/online.php?id=478
Sorry.
Also, I should say that I’m not as adamant as Cornell, or that I am in full agreement with him, just wanted to add it to the discussion.
Carry on.
Ben (45):
I’ve seen arguments like Saul Cornell’s before, and I remain unpersuaded. The fact that those who wrote the document couldn’t precisely agree does not mean that: a) the meaning of the text, as understood by the common man at the time of the origin of the document, is impossible to determine; or b) all but a few possible variations are excluded by the text. On the last point, many wish to point to the presence of vagueness and ambiguity in language and declare that meaning is indeterminate. Of course, that depends entirely upon what you mean by indeterminate. For example, if I use the word “red,” most people will imagine in their minds some variant of the color I have in mind, but very few will imagine the precise shade I imagine. However, that does not mean that someone who pictures the color green, or the color blue, is also correct.
justkidding,
As is often the case, it is my training in Ancient Near Eastern texts that makes me suspicious. And, to be fair, there is a lot less information available there than there would be for the 18th century English language texts. With those obvious caveats, establishing the meaning of a given Hebrew or Egyptian form is never really sufficient. For instance, I once read a passage in the Am Duat (Egyptian description of the land of the dead) that said something like “baboon, baboon, baboon, Red Crown.” I understood all the words and even had a notion of their context, but I don’t pretend to know what was meant (or intended).
But now, I am probably being stubborn. I guess that I tend to think that all histories, recreated from artifacts and manuscripts, are modern creations. Some are likely to be more accurate and some are likely to be less; but I remain suspicious of claims to knowledge of the past. Maybe I think history should be a matter of faith.
Of course, I’m not sure that privileging the thought of the founders over current interpretation is the way to go anyway, so I’m not inclined to put in the effort necessary to convince myself that I am sufficiently conversant in their world and worldview to understand how to legitimize and delegitimize potential uses of 18th century New World English.
John C (49):
I think it’s perfectly legitimate to question whether we ought to be bound by 18th Century views of the world. One of my biggest frustrations with living constitutionalists (I don’t know if you fall into this category, or not) is that they don’t return the favor, in that they don’t concede any validity to my preference to not be bound by the “evolving” views of modern jurists. We are bound by one or the other, and while it is a normative choice, to be sure, I personally don’t think modern views about the proper role of government are any more likely to be correct than 18th century views.
Justkidding, isn’t the issue of “being bound” one of authority? That is they think the jurists ought decide these issues.
Although I rather agree that they don’t like conservatives especially taking a different view of how the living constitution ought be treated as a living document. I’ve often wondered how many conservatives actually are originalists or similar positions and how many actually do adopt a living constitution view or even the style of pragmatic law Oliver Wendell Holmes practiced. (My view of Alito is that he adopts the Holmes position when he feels strongly about an issue such as with the recent California prison dissent or his view on medicinal marijuana or the like)
Maybe someone like Nate Oman can speak up on that.
Clark,
Don’t tease me like that. I’m still awaiting my first comment from Nate Oman on a post at BCC.* This is my 132nd, and if he hasn’t shown up by 150, I’m going to quit leave the Bloggernacle.
*He did leave one comment on a post at BT last year. Best day of my life.
Clark (51):
I have no doubt that some conservative jurists use originalism as a tool like any other. All you have to do is look at Scalia’s statements on the Free Exercise Clause to know that he falls into that trap. I don’t know that we have enough from Alito to know for sure, because sometimes the cases are harder to decide than they look from the outside. Personally, I’m opposed to pragmatic law or living constitutionalism; I find little difference between them, at least as it pertains to having to be bound by the personal preferences of a few men and women in black robes.
justkidding,
I believe that we should find an appropriate balance between our 18th century founders’ and our current notions of good governance. I’ve no idea how to actually do that, of course, but it sounds nice on paper.