Tuesday, January 11, 2011

Re: Originalism and Freedom

In replying to my response to his original post, Gus makes some very interesting remarks, many of which I agree (specifically regarding the contradictions within the Republican platform).  The point of my original post, however, was that you were not fleshing out these contradictions (at least this is how your post read).  Rather, you claimed that the republican platform implies an extreme form of nationalism.  My point was that this is wrong.  The republican platform implies nothing.  It is completely contradictory (I believe the same is true about the democrat platform as well).

Also, an originalist interpretive methodology does not imply a reverence to the past vs. the denial of authority to the present, nor does it imply a vacuous conception of freedom.  At most, it implies a kind of distrust for government and legal officials in general.  By anchoring the interpretive object in concrete rules, the originalist methodology seeks to limit the discretion of the interpreter (i.e., the norm applier).  If the originalist was necessarily preoccupied with the authority of the "founding generation," she would recognize that many clauses of the Constitution are standards rather than rules (e.g., "cruel and unusual punishment").  Standards require certain evaluative judgments be made downstream by the norm-applier rather than the norm-creator.  Thus, the norm-creator, by positing a standard, indicates the intention that evaluative judgments are to be made by the norm-applier.  Originalists evince a certain distrust for legal officials by re-interpreting standards into rules ("cruel" means x, y, and z).  This distrust may be the result of a variety of different political or pragmatic beliefs.  For example, one may believe that (1) the point of having a fundamental legal rule (i.e., a constitution) is to lock in certain political-moral principles that cannot be changed by the whim of those currently in office, (2) the point of having "law" in general is to authoritatively settle political-moral disagreement, and (3) by granting officials wide discretion in interpretation, the point of such a system is undermined because we (the originalist) do not trust officials to interpret the norms in accordance with principles determined to be settled.  In such a situation, one may argue for an originalist methodology without any reverence for the past. 

Notice that this argument proceeds without denying the moral right of a generation to alter the core principles by which they are governed.  Rather, it assumes that a "society" reproduces itself over many generations, that such a society is never made up of a single generation, and the belief that the whole point of establishing a fundamental rule is to authoritatively settle certain disputes such that the fundamental structure of the system need not be in constant flux.  Thus, in the event that a generation desires a change of the core principles that the society is governed by, it requires that a vast majority of such a society to agree.  The reason for this super-majority requirement is that it permits the fundamental rule of the system to function as a fundamental rule.

There is one further point worth noting.  Alternative interpretive methodologies do not imply an added appreciation for the moral authority of a generation to determine the principles by which they are governed.  The Dworkinian interpretive methodology is decidedly anti-democratic and places great weight on the past. 

I believe that the crux of the political rhetoric is not to be found in any fundamental belief regarding democratic authority and the moral right to determine the fundamental principles of a system.  Rather, interpretive methodologies are argued for based on political expediency.  If republicans believe that, based on the current judicial climate, judges are likely to overturn their favored legislation, they will argue for whatever interpretive methodology reins in the courts.  If democrats believe that, based on the current political climate, state legislatures are likely to produce laws contrary to their favored policies, they will call for an interpretive methodology that produces the results they desire.  It cuts both ways and both sides are fraught with contradictions.    

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