Legal Commentary

I?m sure most people recognize the punch line of a joke usually told at economists? expense.  I?ve sometimes felt, though, that the joke could just as easily start with ?A philosopher, a politician, and an originalist are stranded on a desert island??. I say this because whenever I raise an epistemological objection to concepts like ?original public meaning? or ?speakers intent? or ?historical linguistic facts? etc. I seem to get one of two responses: (1) ?But, assuming we could discover original intent, then you?ll concede that it should govern; or (2) ?Just because original intent is hard to find doesn?t mean it isn?t worth looking for.?   Suffice it to say that I don?t find (1) at all productive; and I?m not convinced that (2) doesn?t seriously compromise the claim that originalism can operate as a meaningful constraint on judges.   In other words, the harder it is to know original meaning, the more plausible various divergent assertions become, and the less constraining history can be.

Indeed, the underlying normative differences between legal inquiry and historical inquiry seem to work against originalism here.  That is, dedicated historians tend to work towards enriching our understanding of the past by rendering it in ever more complex, nuanced, and subtle shades.  Legal decision, however, requires ?right? answers, and so the lawyer seems to be in search of greater simplicity, or more clearly defined kinds of historical meanings.   As a result, there is at least the danger that the ?law office historian? will be pushed towards less sophisticated histories that provide easily digestible, law-friendly results?at the expense of more complete or thoughtful approaches.  In other words, not only is the supposedly ?constrained? originalist often able to pick from among various possible histories, but she may in fact be drawn to ?bad?, at least ?less thorough?, kinds of accounts.  All of this, I think, suggests that epistemological difficulties present a very real problem for the claim that originalism can constrain judges in a meaningful way; or worse, that it can provide some ?neutral? basis for constitutional decisionmaking.

Having said all this, I do think that more recent (and perhaps more sophisticated) originalist theories do recognize the serious problems that the epistemological objection presents, and they are thus dedicated to building more precise methods of ascertaining, or at least ?fixing?, historical meaning.  But even these theories seem to operate on the assumption that this meaning, while difficult to discover, is theoretically out there.  As I have said in earlier posts, in difficult cases I think there are good reasons to doubt even this more modest claim?but that?s for some other day.