Teaching Originalism

|The Volokh Conspiracy |

This spring I am fortunate to have the opportunity to teach a class at Harvard Law School on constitutional originalism. The syllabus, for those who might be interested, can be found here. It includes a fairly lengthy list of suggested readings for those who might be so inclined to explore.

Although originalism is something that I write about (e.g., this, this, and this), it is not something that I could normally justify exploring extensively in the classroom. We'll see how it goes. There has been a tremendous outpouring of work on this topic over the past several years (some of it even by people not named Larry Solum), so it is certainly of scholarly interest. Given the conservative legal movement's continued affection for originalism, and the Republican Party's ability to sometimes win elections and prioritize judicial nominations, originalism has some practical significance for those who want to work on constitutional issues in contemporary American courts. Thanks, Justice Gorsuch!

It would make sense for law schools to incorporate originalism into the curriculum, and there are even some originalists around who can teach such things. The Georgetown Center for the Constitution has done an impressive job of putting together a summer boot camp on originalism for law students from across the country.

My syllabus emphasizes the theoretical debates, though there is now a sophisticated literature doing the hard work of applying originalist theory to constitutional problems as well as a growing literature on the history and politics of originalism (both get some attention for those who might be interested at the end of my syllabus). Judicial opinions don't make the cut, however. They get enough attention as it is.

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  1. Sounds like an awesome course. One suggestion Professor, could you please alphabetize the author’s names in the syllabus? Your students will thank you. Trust me on this one. 🙂

  2. Do you address the tensions between the goals and methods of originalism and the goals and methods of professional historians?

  3. “It would make sense for law schools to incorporate originalism into the curriculum, and there are even some originalists around who can teach such things.”

    Another invitation for our strong law schools to emulate our downscale law schools by placing more movement conservatives on faculties. Better schools — Penn, Harvard, Yale, Berkeley, Michigan, Columbia, NYU, Stanford — should decline the opportunity to become more like Regent, Samford, Wyoming, Liberty, Mississippi, Ave Maria, and Appalachian.

    1. I do not classify myself on the false dichotomy of Originalism versus “Living Constitution,” but I respectfully disagree with your post. This is nothing about downscaling Law Schools. As long as there are Judges who claim to be Originalist, I think it is useful to understand the theory. Whenever I am before a Judge I will try to review written decisions by the Judge on similar fact patterns. I want to know what makes the Judge “tick,” so I can craft arguments that will appeal (no pun intended) to the Judge. I like that the syllabus focuses more on the theoretical debates of Originalism because many of the Judges who claim to follow it are not actually doing so in practice.

      1. I believe hiring more movement conservatives for faculty positions at strong law schools would diminish those schools.

        Check the relationship of “more conservatives” to “weaker school.”

        1. I don’t see a requirement that “movement conservatives” are the only people allowed to teach about “Originalism.”

          1. The Conspirators want to require more students to read more conservatives’ work, and want better law faculties to hire more conservatives. Did you review that syllabus? It’s a clingerfest.

  4. Do you address how various (in)famous cases would turn out differently if the justices had applied “originalist” reasoning, and why those differences make it a non-starter for folks that don’t want to be criminals?

    1. Please elaborate.

      1. Under the “living constitution” theory of interpretation, we got a “right to privacy” from Griswold v. Connecticut (1965). A large number of civil rights cases depend on that, including ones dealing with criminal penalties for private conduct.

        Under “originalism”, how does that case law survive? Under “originalism”, how am I not a felon in Texas?

        1. Well, originalists aren’t committed to treating the 9th amendment as an ink blot. There is that. You’d need to make a case that privacy was a traditional right at the time the Bill of Rights was adopted.

          Alternatively you could try persuading legislatures to change the law.

          1. In other words, Escher is correct. There would be no right to privacy. And in most states (particularly in the South) a married couple would still not be able to purchase contraceptives. Interracial couples wouldn’t fare too well either.

            1. How so for interracial couples? Equal protection, especially as to the 14th Amendment, is quite clearly originalist.

              Ignoring how the law and social norms might have evolved differently, if originalism in almost any form took root and tossed out Griswold I highly doubt that even a single state would prohibit contraceptives. I’d even be surprised if more than a few counties did – though I’m sure some cities would.

              But that’s just as some cities would legalize all drugs, or marijuana, or machine guns – all things of really questionable federal power.

              We’d get a lot more variation with originalism, both good and bad, but the only way to find out what’s really good or bad is to try it and be able to quickly revert back if it’s a bad idea. But perhaps some people would like those greater restrictions – many people buy homes in HOAs, not because they had no other choice, but because they happily traded some level of control for a higher set floor.

            2. “Escher is correct. There would be no right to privacy.”

              You don’t know that. There could very well be a right to privacy at the federal level, and state courts may find the same at the state level.

            3. Um….no. Quite the opposite. The 9th and 10th amendments actually mean something. It is not complicated. For whatever reason(s), the SCOTUS doesn’t rely on those amendments. But I think a right to privacy is clearly within the scope of those amendments.

              1. But I think a right to privacy is clearly within the scope of those amendments.

                Only if you ignore the context of 1789, and the rights that were respected in that time.

            4. In other words, Escher is correct. There would be no right to privacy.

              Stated a different way, there would be fewer judges who think that the original text of the constitution is no impediment to requiring society, against the wishes of the legislature, to implement whatever laws the judge believes would result in a better society. The people who claim to want judges to have the final decision on important societal questions seem to believe that once they have ceded this authority to the judiciary the judges will never decide the issues the wrong way. Judges will never decide, for example, that there should be not just freedom to have an abortion but also freedom to sell one’s personal labor at whatever rate one chooses.

              And in most states (particularly in the South) a married couple would still not be able to purchase contraceptives.

              Because most people wouldn’t vote for a state legislator who would legalize contraception?

              1. The people who claim to want judges to have the final decision on important societal questions seem to believe that once they have ceded this authority to the judiciary the judges will never decide the issues the wrong way.

                No one seriously claims or believes that.

                We’re a republic with three co-equal branches of government with checks and balances between them. Seeking redress through one branch does not mean you think it should have the “final decision”, it means you think it’s the branch that may help you now.

                Similarly, no one seriously believes that judges will never make wrong decisions. A court win may give you immediate relief, but if you want it to last you have to persuade the American people so that the relief becomes a cultural norm, and not an oddity.

                Because most people wouldn’t vote for a state legislator who would legalize contraception?

                I mean, you can literally look at the legislative record and see that yeah, people voted for folks that successfully banned contraception. Do you really think so little of people in the past, and so much of people today, that you don’t think folks would make the same mistakes again?

                For that matter, are you ignorant of Republican efforts to make “life begins at conception” a law, not a mantra?

          2. Well, originalists aren’t committed to treating the 9th amendment as an ink blot.

            So it’s just coincidence that the ones on the SCOTUS have done so?

            That said, no, Scalia and Thomas weren’t coy with their dissents. Down the line, every law struck down under a right to privacy supported “tradition”, and the new status quo was distinctly “untraditional”. If you need lies about history to sell your interpretative theory, at least have the guts to tell the lies yourself.

        2. Escher,

          The entire point of our constitutional design was that most matters, such as regulation of contraceptives, would be left up to the states, with laws made by state legislatures and carried out by state executives, subject to state constitutions as interpreted by state courts.

          Why on earth is originalism a “non-starter” just because federal courts don’t invent out of whole cloth the ability to regulate the regulation of contraceptives? This makes no sense at all to me.

          I am sure there could be a “right of privacy” found by federal courts under originalism, but it would apply against laws passed and actions taken by the federal government; as to state laws federal courts should not have jurisdiction.

          1. Why on earth is originalism a “non-starter” […]

            The eight words after “non-starter”.

            1. Right, well, with California talking about secession, I think a lot of folks on both sides might see the value in agreeing to disagree and letting states govern their own affairs.

              1. I think a lot of folks on both sides might see the value in agreeing to disagree and letting states govern their own affairs.

                Because nothing says “land of the free” like having my marriage become a de facto basis for imprisonment if I get a layover in Texas.

                1. I don’t follow, but in general I suspect that most of the parade of horribles that people trot out against state autonomy wouldn’t actually materialize in the counterfactual where states actually had those responsibilities, and federal courts hadn’t preempted vast amounts of the police power.

                  1. To a one, every single case that reached the SCOTUS that struck down some small part of “state autonomy” only got there because the “parade of horribles” was actually happening to actual people.

                    And it’s really not hard to follow. I’m a man married to a man. Under “letting states govern their own affairs”, I’m a felon in Texas. It’s only because the SCOTUS (using non-originalist reasoning) said otherwise that I’m not.

                  2. “Wouldn’t materialize.”

                    “Never happen.”

                    What a load. They have materialized. They have happened.

  5. Should law schools offer courses on Kim Kardashian, who is older, more popular, and more persuasive than originalism?

    1. Maybe a course on senile, bigoted boomers spending retirement years posting drivel on the internet.

      1. Open wider, M L. This will be easier for you that way.

      2. Say what you will, ML, your politics are much more Boomer than ALK’s.

  6. Which “originalism” are we talking about here?

    Original Intent
    Original Meaning
    Original Public Meaning
    Semantic Originalism
    Framework Originalism

    1. For most practical cases, they tend to converge on the same answer, because the people writing the Constitution were trying with some success to write text that would successfully communicate their the meaning they intended.

      But some varieties of “originalism” (I’m talking to you, J.B.) are just Trojan horses to smuggle in living constitutionalism under disguise.

      1. Actually, they tend to converge on the same answer because the whole point is to arrive at ideologically conservative answers.

        1. That’s almost tautological, using conservative to mean it literally rather than as a stand in for “republican.”

          Anything in the constitution got there with overwhelming support definitionally, and in the past, and a conservative has to conserve something, so of course what’s actually written down is (now) conservative, just as it was progressive the moment it got added – it was moving the constitution forward.

          Your objection instead seems to be that modern progressives don’t want to use the methods of progressing that the polity agreed to, but would rather progress by temporary fiat. That’s certainly not liberal as it’s the same mechanism despots use; the fact that modern progressives in the US haven’t ultimately succeeded in that doesn’t mean they’re not using the same methods. That’s why we now hear calls to change the Supreme Court if they don’t give a vocal minority (the progressives) what they want….. which is exactly what every tin pot dictator has done in the past – the judgements of the judiciary are only to be adhered to when they get the right answer. We had a couple of brief run ins with that in the 1930s and 1830s, and I hope we’re not on a century cycle to see it again in the next decade, but all the markers are there.

          1. My comment is only “almost tautological” if I accept either of your definitions of conservative. Your comment, however, is totally straw man. You define “my objection” in a way that I don’t, and then argue against your construction of “my objection.”

  7. There are probably as many actual historians on that reading list as there scientists for a course pushing Creationism.

    1. ‘Teach the controversy!’

    2. Why would you expect to see a lot of historians in a course on philosophy?

      1. Because it’s the legal philosophy of attempting to use historical methods to reach legal conclusions? Originalism depends on an understanding of the past. If that understanding is different to people who study the past for a living as opposed to those using it for a particular result in a particular case, then that would be good to explore.

        1. It seems captcrisis and you are mistaken; if you look at the syllabus the course doesn’t seem to be about any particular application of originalism, where the history is used, but rather all of theory about whether and how originalism should be applied.

          1. You seem to think my comment indicates something it does not.

            Read better.

            1. You’re not even in this comment thread..read better?

          2. Shouldn’t “all of the theory about whether and how originalism should be applied” include an exploration of how originalist’s study and assumptions about the past match or differ from those of professional historians? Isn’t that a relevant question as to whether or how it should be applied?

            1. Sure, it could. But the course just doesn’t seem to get that far. I went looking for particular constitutional topics and found the course doesn’t cover any, but there’s a list of “Some Further Topics for Exploration” including “Applied Originalism.”

              Randy Barnett used to post about this. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/28/challenging-the-priesthood-of-professional-historians/

              1. I read that post. It showed a weak understanding of the historical field as a whole. For instance, he scoffed at the hubris of historians for “think[ing] they can understand the philosophical arguments of thinkers in the past with no training in philosophy,” as if intellectual history and history of philosophy weren’t sub-disciplines within the field.

                It was a very self-indulgent attempt by a lawyer with an agenda to explain why he’s just as smart as historians with PhDs. It was kind of whiny to be honest. It also included a shout-out to Michael Bellisiles who is now the go to conservative excuse to disregard all claims of all historians. Never mind that historians over the last fifteen years have grappled with overcoming that debacle extensively.

                So I guess it makes sense that originalists don’t want to discuss what professional historians say. If they start talking about them they get super defensive about both their training as lawyers (or political scientists if you’re Professor Whittington) and their claims.

                1. It’s a disease, LTG.

                  Way too many lawyers, especially academics and judges, suffer from “Lawyers know everything” syndrome.

                  1. As a lawyer I completely understand the impulse. Lawyers are actually pretty blessed with the opportunity to be able to learn a lot of stuff in a lot of different fields. They might even develop some expertise in various areas that can actually result in a positive contribution to discourse. Bryan Garner spent so much time researching and writing on the subject of good writing that the Chicago Manual of Style let him do the grammar and usage section. Similarly, I would agree with Barnett that attorneys can do really good historical research. I also think that most historians aren’t immediately dismissive of historical work by people without history PhDs.

                    What is a problem with many originalists, and Barnett in particular, is that they think they know more than professional historians and that professional historians can’t possibly critique their work because of their belief that history is not that hard and historians are all leftists anyway. Therefore they automatically discount critiques of both the movement as a whole and particular results because they think historians are just engaged in advocacy like they are. Although some historians undoubtedly are engaged in advocacy, it doesn’t occur to some originalists that historians actually might know more overall about American history from mastering secondary literature, more familiarity with the context of relevant primary documents, specific archival research, etc.

  8. The Constitution’s legitimacy today rests on voluntary acceptance by today’s citizens, who read the text based on today’s public meaning. So why shouldn’t today’s public meaning control?

    1. A good question, and one I hope is addressed in this course.

      Nothing wrong with teaching originalism, or advocating for it. Just so long as none of the course includes the ‘all other methods are not just incorrect but illegitimate’ carping that this comentariat goes in for.

      1. I think, at least for some broad definition of originalism, all other methods are illegitimate. I’d be careful to note that this does not apply to any particular application of originalism, where reasonable minds may differ, but only to the method or theory.

        But I’m willing to be persuaded. Can you give in one sentence what you believe to be a legitimate non-originalist method of interpretation?

        1. Come on, ML. There are book and books on this.

          Modern language.
          Modern meaning.

          1. So you can’t.

            1. I just listed 4. Don’t be obtuse.

              1. Ok I just googled positivism.

                “the theory that laws are to be understood as social rules, valid because they are enacted by authority or derive logically from existing decisions, and that ideal or moral considerations (e.g., that a rule is unjust) should not limit the scope or operation of the law.”

                I don’t see how that contradicts originalism. On the contrary.

                1. First, I listed four. You barely addressed one. This is very much not how I hope this course goes.

                  Second…you didn’t know what positivism is? And you are a trained attorney?

                  Anyhow, if you can’t see how positivism can be used as an alternate to originalism, check out Breyer’s Active Liberty which uses a positivist/purposivist paradigm.
                  It’s not my personally preferred method of interpretation, but it’s certainly enough to create a counterexample to your ask above.

        2. The pursuit of justice.

          1. Well, thanks for an honest answer. So do you believe, then, that there is an objective standard of justice, i.e. an absolute moral truth, that can be pursued?

            1. So do you believe, then, that there is an objective standard of justice, i.e. an absolute moral truth, that can be pursued?

              As an agnostic, I don’t claim a belief on that one way or the other.

              But the lack of knowledge regarding an infallible truth has never stopped humans from pursuing it anyway, so I’m not sure why it should now. We can work to make a more perfect union without knowing if it’s possible to create a perfect union.

              1. I appreciate that, although I’m not sure why being agnostic rules out belief in moral truth.

                My thinking is, regardless, why enforce your moral truth on the neighboring political subdivision?

        3. “what you believe to be a legitimate non-originalist method of interpretation” — Asking what the words mean to most modern people reading the text.

    2. I don’t read the constitution as though it were written today, nor any historic document for that matter. Besides, I feel like the courts are making it so that not only do I not know the contract between me and my government, I can’t know it because it’s meaning can be changed thus pulling the rug out from under me. I want to trust my government. Make that easier instead of harder.

      1. Does originalism actually make that easier? Consider the Eighth amendment. You need access to 18th century dictionaries, common law treatises, and historical records showing eighteenth century criminal practices to figure out the original public meaning of “cruel and unusual punishment.” Once you understand that, you may realize that that conception is absolutely unrelated to modern notions of cruelty. So now you only understand that the prohibition is somewhat worthless anyway.

        1. You need access to 18th century dictionaries, common law treatises, and historical records showing eighteenth century criminal practices to figure out the original public meaning of “cruel and unusual punishment.”

          Before you even do that you need to figure out the meaning of “meaning.” If the barred punishments could be defined as, “punishments we describe here,” it means one thing. If it means that we are to evaluate possible punishments by contemporary standards it means something else.

          There is a difference between, “pick up milk, eggs, coffee, and cereal,” and “pick up stuff for breakfast.”

          1. Much of originalism seems to distill to ‘do you pine for the days when a slave could be whipped without fear of others’ objection, a black man was required to lower his gaze in the company of white women, and schoolchildren could be led in proper prayer by the teacher without the Jews and atheists and Muslims interfering?’

            Wrapped in plenty of new-fangled Olin-Bradley-Heritage-Federalist-Republican wordsmithery, of course.

            1. Obvious troll is obvious.

              1. A suggestion of ‘let’s add courses on reading a bunch of recent conservative articles’ directed toward our better law schools is just fancy trolling.

                I do not expect clingers to agree.

          2. But in the mine run of cases you don’t need that, because the meaning of terms hasn’t shifted that much.

            Proof: no burning alive as judicial punishment since the Constitution, no flaying alive, no immersion in boiling anything, no drawing and quartering (which was still an active sentence in England at the time), no branding (though I’ll grant you this one was sometimes honored in the breach).

            Most things are clear, which is precisely why we don’t see them. Even police encounters adhere to the constitution under any interpretation the vast majority of the time (regular reports of malfeasance notwithstanding, those are in the small minority).

            But some things would go the other way: sovereign immunity is questionable from an originalism perspective, and qualified immunity wouldn’t exist anything like it does today. The practice at the founding was that an individual could criminally prosecute an agent of the state for search, seizure, theft, or trespass (among others), and the only defense not allowed anyone else was a warrant authorizing just those actions. It wasn’t a “well this would be a felony if a private citizen did it, and he didn’t have a warrant, but we’ve never said you can’t shoot a small dog and hit the child behind it with a ricochet before, so immunity” at the founding, it was much closer to strict liability – don’t have a warrant for the dog or kid? Strict liability, and criminal sentencing for negligent discharge of a firearm (at least that’s the modern version of it).

            Sure, we’ll lose some things – Griswold is probably still good law, as is Lawrence, but Casey and Roe v Wade are definitely out. But if those are sufficiently popular they’ll get passed as amendments rather than leaving them to the vagaries of the Nazghul.

            1. Griswold is probably still good law, as is Lawrence […]

              Citations needed.

              Every originalist thinker on and before the SCOTUS has been derisive of the Right to Privacy and every conclusion that has flowed from it, including Lawrence. This isn’t secret knowledge.

        2. If the 8th amendment is now meaningless in practice because no legislature or executive in today’s society would see fit to run afoul of it — yes, yes that does make it easier to ascertain the meaning of the 8th amendment.

      2. “I don’t read the constitution as though it were written today” — but don’t _most_ average people read it as if it was? The Constitution’s legitimacy today rests on voluntary and knowing assent by _most_ of today’s people. If it was written in Old English, wouldn’t it be less legitimate as a governing document, even though it would be (in theory) readable by anyone who takes the time?

      3. Edward: I don’t read the constitution as though it were written today, nor any historic document for that matter.

        You may not, but the assertion implies that you read it instead with the context and meaning an 18th-century educated reader would give it. It is possible to do that. The folks who can do it are typically professional historians, who have pickled themselves so deeply in reading documents of all kinds from that era, that they have effectively learned about that era in the same way—and to a similar extent—as did the folks who lived then.

        After that kind of immersion, a would-be historian will know not only what folks thought and knew then, but also how to distinguish facts, insights, customs, prejudices, inventions, etc., which were created in the interval between then and now, and thus could not have been known in the slightest at that time, or been the least bit influential. Also, add the things known and widely accepted then which have since been forgotten, transformed, or otherwise suppressed or become disguised in present understanding.

        Once all that is second nature to you, and habitual in your thinking, then, yes, you may not read the Constitution as though it were written today. But until then, you will read it as though it were written today, no matter what you suppose, because today is all you know.

        So, are you a professional historian, or perhaps a gifted and persistent amateur? What interval did you give to your studies? What era is your specialty?

        1. EdWard, apologies.

    3. But today’s citizens are perfectly capable of reading original sources, which are hardly secret or written in Sanskrit. For instance, there are several pages of different editions of the Federals and anti-Federalist papers for sale on Amazon. Books of original source material on the 2nd amendment are all over the place, too.

      Are we talking the meaning that the average member of the public would find while reading the Constitution, or the meaning your average lawyer would assert?

      1. “meaning that the average member of the public would find while reading the Constitution, or the meaning your average lawyer would assert” — average member of the public. The Constitution’s present-day legitimacy rests on voluntary assent by the public, not just by lawyers.

      2. The federalist papers and anti-federalist papers, while aids in interpretation, are also highly context specific political documents written by politicians. So their meaning requires an understanding of the relevant historical and political context. So you need more primary and secondary sources for that too. It’s not like there is some magic key that suddenly reveals constitutional meaning for the lay person.

    4. “The Constitution’s legitimacy today rests on voluntary acceptance by today’s citizens, who read the text based on today’s public meaning. ”

      No it doesn’t, and no they don’t.

      People don’t read the Constitution at all, and if they do they will generally not derive some meaning from it based on today’s public meaning of the text, but will look to learn the meaning based on how it is put into practice or what it meant as enacted.

      More importantly, the Constitution’s legitimacy rests on its being a set of principles that are fixed in meaning across generations, forming the foundation of a “government of laws and not of men.”

      Really, given the complete distortions over time, the more pertinent question is whether the Constitution retains any legitimacy and how much.

      1. “People don’t read the Constitution” — or statutes, yet they’re subject to the laws on the presumption that they had read them. It’s a necessary legal fiction. But _if_ they had read them, they would have taken the words to mean what they mean today.

        “he Constitution’s legitimacy rests on its being a set of principles that are fixed in meaning across generations” — fixed because people _chose_ not to amend them. They make that choice by reading the existing text and deciding to keep it. When they read, they take the words to have today’s meaning. At least, that’s the legal fiction we need to assume.

  9. Nothing really wrong with teaching a course on the subject. It gets a lot of play in jurisprudential texts and supposedly influences important judges.

    But I do hope that any such course takes a critical look at it, including such areas as:

    1. Does originalism actually constrain judges, as adherents claim, or do they just ignore it or find convenient texts to latch onto when they want a particular result?

    2. Did the framers actually intend or understand the law as requiring an originalist interpretative metric, or did they expect and understand that other forms of interpretation would be used?

    3. Is originalism oversold by its vocal proponents, who often claim that anyone not doing originalism is “ignoring the law”, or are there other legitimate ways to interpret law?

    4. How do you solve the level of generality problem discussed by Justice Scalia in Michael H. v. Gerald D.?

    5. Does originalism inexorably lead to some terrible results, such as wiping sex discrimination out of the equal protection clause and requiring Brown and Loving to be overturned?

    6. Is originalism overly dismissive of precedents, especially since they not only reflect the wisdom of the past just as much as original understanding does, and the framers understood that precedent would be the backbone of the Article III judicial power?

    7. Is it even possible for overworked trial court judges to utilize originalism?

    1. Agreeing that all of these would be good to cover, though perhaps in a philosophy of law course rather than a how to manipulate judges course. That said, adding these parts, with commentary.

      1) Does originalism constrain judges? Does any other interpretive philosophy, to the extent that it’s not coterminous with originalism, constrain judges? Are any constraints great or lesser than other methods? Does this vary by meaningful topic (such as due process construed extremely broadly, while the 2nd amendment construed as a nullity)?

      3) can other interpretative methods, such as purposivism, be harmonized with originalism? Are there areas where originalism leads to indeterminate outcomes where other methods do not? Are those necessarily void for vagueness, or is there a place for extra-originalism methods to resolve outcomes? Are there any fundamental constraints on how those must be resolved?

      5) how do incorrect factual beliefs of the drafter impact later meaning? If the drafters wrote clearly but with faulty beliefs, do their beliefs overrule the plain meaning of the text at the time? What if the majority of people held those false factual beliefs and so also understood the text to mean something other than what they would understand if they had all of the relevant facts?

      6) did an assumption of precedent in the judiciary exist at the founding? How widely was that belief held? Did that change after the addition of the Louisiana Territory and the introduction of civil law? Did that change after the Reconstruction Amendments applying portions of the Constitutional power restrictions on the states?

      You can see from some of my additions that I happen to have certain answers to some of these, just as your questions suggest others.

      1. 1. I think precedents constrain judges. Indeed, I have specific examples of it. E.g., Dickerson v. United States. If we made a bigger deal of precedent, they would constrain judges more.

        6. The framers strongly believed in precedent and referenced the common law in the Constitution and their writings.

        And don’t oversell Louisiana. Precedents matter in Louisiana too- the Civil Code is more specific and detailed, but judicial doctrines still fill gaps.

        The other two are very complex. Will get to them later.

        1. I find #5 the most interesting, when we learn that prior beliefs in the world were wrong. Take solitary confinement over extended periods, for example. Based on what we know now that definitely cruel, and if the founders had our knowledge on the human condition they would agree. But since they didn’t know what we know, they didn’t know how cruel that actually was – that the long term effects of solitary are on par with torture, even though the acute effects are different.

          That also solves a lot of the otherwise bad outcomes – it’s not that our social mores have changed (though of course they have), but that our factual knowledge has changed, often refuting prior settled knowledge.

          1. If you have to twist “originalism” to include “what they would have said if they had my beliefs and intentions rather then their beliefs and intentions”, you’re kind of mooting the whole concept, no?

            1. Agreed, but that’s not what I said.

              Instead the change is in factual knowledge, not value prioritization. To pick an easy example, the 1A covers only speech and print and therefore facially doesn’t cover telegraph, telephone, fax machines, or the internet – they are neither speech nor print, at least until the very last stage, and even then a display on a device is not printing. But we can take the principle expressed in the amendment and apply it to new factual scenarios: what doesn’t the underlying principle mean when applied to new factual scenarios, not what do we wish it might mean.

              So taking that what did it mean applied to new facts, versus what might we wish it to have meant based on changing needs we can see how things like the 2A get applied. At the founding the 2A meant some form of right to military arms, perhaps with a mandatory armory when stored in high density areas (many towns and cities forbade various forms of weapon carry, but supplied an armory to check in your weapons on arrival, and check out on departure, on the basis that you won’t need your musket in town, but might need your pistol or sword). It further prohibited they federal government from removing those armories (for the organized militia) or arms from the citizens at large. By analogy that applies directly to modern arms: machine guns, grenades, plastic explosives, mortars, etc, though it’s less clear how that would apply to larger ordinance such as howitzers, tanks, and large rockets – while there were plenty of privateers at the time, each was chartered by an organized polity that I’ve seen (happy to learn otherwise), so by analogy it may be that the 2A doesn’t apply to some modern weapons in common use simply because the type of equipment commonly used now is so much greater than what was commonly used then.

              That said, you can still apply the principle to the modern facts: girardoni air rifles and volley guns weren’t restricted, ergo machine guns can’t be, speech couldn’t be prohibited, therefore loud speakers can’t be. The only challenge this really leaves is the level of generalization that’s appropriate. My general view is based on externality comparisons – if some use was protected in the past with an externality of X degree, then anything that falls within a level of generality under that level is necessarily protected too. This is necessarily a one way ratchet expanding freedom, but I think that’s a better default rule that one that’s a one way ratchet limiting freedom.

              1. But we can take the principle expressed in the amendment and apply it to new factual scenarios […]

                How ’bout you apply it to what they actually did?

                Upstream you said you think that even under “originalism” Lawrence is still good law. Reconcile that with the history of sodomy laws in the United States, which didn’t see any conflict between the original meaning and intent of the Constitution (and Bill of Rights) and sodomy laws.

                Heck, how about John Adams signing a law in 1798 making it a crime to criticize government officials? Today we’d say that’s obviously unconstitutional, because… well, actually, Trump would argue that was right-as-rain, so maybe that’s a bad example.

                How ’bout religion? Current status quo is that the First Amendment prohibits rejecting jurors for being atheists, and that State Constitutions that prohibit atheists from holding elected office are unconstitutional. That’s in pretty obvious and direct violation of the obvious original meaning and intent. How do you support that conclusion without replacing their “value prioritization” with your own?

                For that matter, currently we think the government sterilizing women against their will and without their consent or knowledge is a bad, unconstitutional thing. In 1791? Those women were property, they didn’t have a voice.

                Fact is, you have to change more then the “factual knowledge” to get the answers you want. But you paper that over because it undermines the entire concept.

    2. “Does originalism inexorably lead to some terrible results . . . ?”

      Of course it would! And that’s true for “terrible” in the eye of any beholder.

      Why on earth would we assume that some brief centuries-old documents are somehow so perfect, that they would breathe into law a mandate of perfect justice in every case?? Even if we could agree on what that was???

      To even pose the question is to give away your corrupt game.

      1. I don’t think posing the question of whether a particular interpretive method leads to terrible results is a “corrupt game.” It’s one of the central questions concerning any legal doctrine.

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