Notes on A Living Originalism

The purpose of this unusually long post is to review and expand upon comment-thread discussion under a set of posts by Tim Kowal and Burt Likko, who are both practicing attorneys with abiding interest in Constitutional Law, on doctrines of interpretation. ((“How do you interpret a constitution?” at Dutch Courage, by Tim Kowal, and “The Text Is All We Have” at Not a Potted Plant, by Burt Likko.)) Many of the text-links will be to the original comments by others and myself.

I can accept Likko’s description of my approach as a “hybrid” of his and Kowal’s, starting out in the area of the latter, but ending up in the vicinity of the former, though I would prefer to stress the complementarity of the two perspectives, loosely “Originalism” and “Living Constitutionalism.” The perhaps still distant objective is a framework for a “synthetic originalism” or “vital originalism” or “living originalism,” or a Unified Theory or at least Adequate Description of American Constitutionalism…

1. Neither Perform nor Quit

Say I have two dogs. According to the terms of my apartment rental lease, I am allowed to keep only one dog, but, upon becoming aware of the second dog five years ago, my landlord did not seem to mind. Over time, he not only observed me with the dog on numerous occasions, but got to know her: He called her by her name, he petted her, he played with her, and he even dog-sat her for me. Yet, today, suddenly, five years after I first got the much-beloved, now fully settled dog, and well after all that petting, playing, and even-dog-sitting had commenced, the landlord has me served with a “Perform or Quit” notice ordering me to get rid of the dog in three days or face eviction. ((Based loosely on real events. I have exaggerated the extent of the landlord’s intimacy with the dog. On the other hand, the service of the Perform or Quit notice took place on Christmas Eve day.))

Mr. Likko informs us that the set of legal terms for the argument I would make, from settled or customary or accepted practice or implied mutual consent, includes “custom and practice,” “course and scope of dealings,” “justifiable reliance,” and “implied waiver.” A related legal doctrine, impressively Latinate if not overawingly Latin, is “Promissory Estoppel,” which allows a judge to enforce a standard of fairness between parties where formalized contractual provisions are lacking. The doctrine goes back hundreds of years, as the name somewhat suggests, having originally developed in England “as an exercise of the courts’ independent power to grant legal and equitable remedies where the statutory laws of Parliament were insufficient to meet every conceivable set of facts.” ((Explanation of Promissory Estoppel Law | eHow )) I do not expect that the doctrine as it survives in American jurisprudence today would be specifically invoked by my lawyer, but the underlying concept is the same: My landlord did not offer explicitly to modify the contract, or make any other promise of non-enforcement, but his actions in my view reasonably amounted to the same thing. He should therefore be estopped from moving to eviction or forcing abandonment of my beloved dog on the basis of contractual provisions effectively abrogated.

A little more research leads us to the Latin we want. The reason that we want Latin, other than for showing off or indulging in philological pleasure, is that we hope to confirm the  concept as ancient and fundamental rather than suspiciously novel or improvised, and in this sense as arguably more original than an Originalism of a mere two hundred and thirty-six years ago. The ancient, possibly Roman Republican wisdom would already underlie any public uses or meanings of law and especially of contractual law, especially for a liberally educated political actor of the 18th Century sitting down to write or standing up to argue for a Constitution:

venire contra factum proprium

‘No one [or ones] may set himself [themselves] in contradiction to his [their] own previous conduct.’

Loosely translated: “to come as against one’s own deed”: Any treatment of the Constitution that approaches the document as a kind of binding contract implicitly entails avoidance of the named fallacy, and dependence on the underlying presumptions.

By continuing to pay my rent month after month I acknowledge the lease in whole and part via clear factum proprium from my side, just as the landlord with my little dog in his lap was factum proprium in incidental modification of the lease on his side. My view is that our real American constitution is the one that will mostly let us keep our second dogs as well as our written Constitution.

2. Text-contractual constitutionalism as a moment within any actual constitutionalism

As Mr. Likko intuited while providing the initial legal language used above ((I stress “initial” legal language: Let no one hold Burt Likko, whatever his real name is, responsible for my use or abuse of the law.)), the reason that I brought up the venire contra factum proprium standard was that I was thinking of the British constitutional concept – a constitution derived both from “a series of notable constitutional documents” as well as from “a number of other sources… part written and part un-written” ((“Written Constitution” at – and the theoretical distinction between an actually constituted whole system and what we normally think of as constitutionalism in America, a constitutionalism based on a contractual or quasi-contractual document.

Any American text-contractual constitutional system will be nested within an in this sense “British” reality, or the realm of our enlarged “factum proprium.” The existence of the text-contractual sub-system within an actually constituted super-system, the “real existing” constitutional order in all of its complexity, makes such a super-system non-identical in practice, and in important ways, with a super-system like the British one that lacks that single central reference and associated presumptions, but the text-contractual sub-system only exists as and to the extent it is actualized, so eventually reduces to the latter conceptually. Put differently, the American Constitution produces or legally “constitutes” the governing structures of an entity called “the United States of America,” but both the US of A and the Constitution or constitutional framework itself remain tools or appendages of the People or of the American People, under the American system conceived of, or taken as the name of, the sole political being, a collective entity, truly in possession of true “constituting power” (the Sieyèsian pouvoir constituant originaire).

3. Original Public Meaning as Primary Initial Encoding

The hermeneutic necessity cannot be evaded. Meanings never “reside… precisely in a set of words laid down on parchment.” No written constitution or text or expression of any kind is self-actualizing – an obvious fact that doesn’t quite go without saying, since we constantly speak of particular texts, laws especially, as though they are or can be self-actualizing, as though “the Constitution says…” or “the Constitution forbids…” or “the Constitution sets up…” The truth is, of course, that the Constitution just sits there, with original copies under guard. Even after we, emerging from the “social context” as living and breathing and reading beings, read and agree on the meaning of the text, nothing happens until someone actualizes or claims to actualize its provisions. How we actualize those provisions, or do not, and react to those actualizations, or do not, produces the “real constitution” or the “actual constitution” or the “effective constitution.” Meanings exist as meanings at all only as factum not as literary artifacts, and textual meanings exist only as read and applied. Textual meanings have to be enacted, and before they can be enacted they must be interpreted. If they are not interpreted or if new or external notions are imposed upon them, then it is something else, an alternative reasoning or otherwise embodied will or force, that is being actualized.

In other words, we must view the Constitution like any other text as written in a code, just as any spoken or written language is also a code – a set of symbols within a system for the conveyance of messages – and any expression including this blog post a coded message. The phrase “original public meaning” (OPM) has been put forward by Kowal as both the name of and an appropriate description for the code employed by our Founding Coders when they, on behalf of “the People,” put together the Constitution of (for) the United States (of America). The Constitution belongs to that class of messages that include instructions for their own interpretation and use: The Constitution’s own proper interpretation and use is in a certain sense the only purpose of the Constitution, though in another sense the Constitution is itself an interpretation of an assumed pre-existing will whose actuality awaits further expression and implementation, by “ratification in fact” or, we might say, ratification in our factum proprium or factum proprium nostrum. In an important sense the continued existence of the government of the United States of America is the true ratification of the Constitution.

The instructions, ratified formally and in fact, have to be de-coded in order for their content to be conveyed, and de-coded according to the code in which they were encoded, not according to some other code. De-coding them according to the wrong code would be not to decode them at all, nor would it represent a ratification of the same particular expression of the popular will.

4. The Originary Deficit

The problems for our Originalists arise, obviously, where the Coders’ instructions, even after the best possible de-coding, do not seem clear and adequate, or where people do not agree whether the instructions are clear and adequate. Assuming that there are no reasonable enough inferences or clear original public meanings to be drawn from the Constitution as written or amended and pertaining to whichever particular matter, then we could say “whereof the Constitution does not speak, thereof the Constitution is silent,” and so there is or should be simply no meaningful Constitutional issue at all, but that will not do for those who insist on Constitutional relevancy and Constitutional penumbrae and the like against those who refuse to acknowledge them. Even under a reign of Constitutional minimalism and silence, there would still arise small-c constitutional issues, implying conceptual-level problems with the system as it is understood and lawyered, as to what is and is not permitted, including a “problem of solutions” that either no longer seem to solve anything, or that lead to unintended consequences.

We have more or less effectively addressed the problems inherent in dependence on a written constitution – a dependence that requires or at least promotes an unsustainable naive theory of language (of perfectible systematic conformity of description to described) – by adopting a “living constitution” and then somewhat non-systematically attempting to read its provisions back into the text, re-originalized after independent origination: the stuff of real life, as society and politics, being swept into the vacuum left by the way that the Framers sought to limit their limited government. Inherent to any original public meaning will be the limits of any original public textual meaning, the requirement for interpretation and ratification in factum proprium, an implicitude of the structure of any governance by interpretation that no doctrine of original public meanings of a text can ever fully eliminate. The very phrase “original public meaning” observes and implies this structure of interpretation, since it refers any notional interiority of the text to an exteriority of social-political context for validation: The internal originality of the text turns out to be exterior to the text, among other things leading skeptics to proceed to the apparent next step of consulting, say, the correspondence of Sally Hemmings or the opinions of the uninformed and illiterate as also representative of some notional “public” in material terms.

The process that results – of improvisation in search of certainty or of end and foreclosure of improvisation – seems less unnatural or paradoxical than it might otherwise for several reasons which are all the same reason from different perspectives. In short, it seems natural because it is the most natural thing of all, that the government and its laws should serve our ends, not some set of dubious abstractions, even if a more fundamental premise, that human beings are susceptible to passion and partiality, but the laws are not or should not be, is imperiled. Even successful enough improvisation of this type describes a deficit or inadequacy, a troublesome gap between Constitution and constitution.

5. Supplying the Originary Deficit

It has been a frequent theme at this blog that this deficit is and must be closed by a political leap of faith that may be indistinguishable from a ruthless pragmatic calculation or application of superior force. This subject makes for a complex discussion in its own right, addressed under the headings of the Exception and civic religion à la Rousseau, also in recent posts.

In discussion under “How Do You Interpret a Constitution,” one commenter’s rejection of Kowal’s Originalism provided for an opportunity to provide a Kahnian brief ((Referring to Paul W. Kahn, especially Putting Liberalism in Its Place and Sacred Violence)). That commenter sought to warn us against “treat[-ing] the Constitution as akin to the Word of God.” Yet the opposite has been and arguably must be our practice: We can, and, much more important, must and do treat the Constitution as akin to the Word of God. For Kahn, reviewing a well-explicated history, a sacralization of the Constitution marks the replacement of the divine and then the monarchical sovereign with the “popular sovereign” or the People as a mystical or some might say fictitious source of authority and collective identity. When we truly no longer treat the Constitution as a divine or quasi-divine excrescence, interpreted for citizen-believers by the oracular Supreme Court, defended by supreme sacrifice, object of sacred oaths, and so on, then we will be under some other system or under no system at all.

In reply to the above argument, the commenter offered elements of the familiar critique of the Founders and Framers ((Another example drawn from current left-liberal discussion: “Wonkblog’s Blind Spot” at Jubilee, by Elias Isquith, referring to comments by popular progressive blogger “Digby”:

I know she’s joking, but I admit I was a little surprised to see Digby scoff at the idea that the game is rigged. She knows, of course, the often tawdry, sometimes immoral compromises and extortions that birthed the Constitution of the United States. Isn’t it conceivable that, more than 200 years ago, a collection of fallible men came together and drafted a national constitution finely tuned to protect some people and subjugate others? Whether it’s the 18th century or today, humanity always proves itself all too human.

Isquith does not consider, of course, that the observation on human iniquity was central to the Framer’s handiwork.)), but there is nothing about the manifold contingency of the writing and ratification of the Constitution that interferes in the least with a conception of its divinity or holiness or qualified divinity/holiness. The Popular Sovereign may work in mysterious ways, and the writ may be true, or divine, or divine enough for government work, because we believe (in) it, as much as the other way around. We find out what the Founding Fathers meant, sometimes without their recognizing they meant it, when the Oracle on First Street reveals what they meant or meant to mean or would have meant when the Spirit was with them, and forever after or until the next pronouncement that’s what they always meant to mean.

As for adaptation to new contexts, that also can be taken as part of this quasi-divine plan, though here we may have to part company with Mr Kowal, since under any mature theory of language as system of signs, there can be no “fixed” meanings. Every today’s resultant in the realm of meaning is a meaning-resultant of multiple meaning-vectors including the meaning-vector of Originalism as understood by Originalists.

Most of the time, there will be no matter of meaningful dispute, since there appears to be no great constituency for radically curtailing freedom of the press or for establishing Anglicanism or for selecting Senators by national lottery instead of by the possibly unfair process we now have. Some matters seem more vexing, or not susceptible to consensual solution. So we live with the imperfections, and will continue doing so until or unless we accept the only final solution of dissolution. In this post we are examining the relationship or system of text and context, contract and factum, with an emphasis on the former, not the latter terms. In a parallel manner, the frequent attacks on the Coders – that they were slavers, they were imperfect, they were drawn from a self-interested elite, some or all of them were obnoxious, etc. – likewise would be matters of context or context of contexts, relevant only if we do not already presume that the Coded instructions are to be followed where and to the extent possible, as, factum proprium nostrum, they have been, as the necessary basis for American constitutional governance at all.

6. Original Public Meaning as Re-Validated Code

Either we agree on the desirability of following the contract as a contract, without regard for the character of whichever legal amanuenses, or we do not. Believing the instructions do not matter, or that interpreting them as they were written does not or may not matter, is to believe in something other than American constitutional self-governance.

It may be possible not to believe in or accept as a presumption the desirability of American constitutional self-governance, though this form of disbelief may not ever be tenable for us. ((Understanding why we may not be able to escape the presumptions of American liberal democracy may require a more complex discussion relating to matters of philosophy of world history, political philosophy, and even phenomenology of mind. Recent observations on liberalism as preceptual and consensual ideology at this blog were intended to point in this first-philosophical direction: of a re-consideration of the natural law account of the whole as originating in the social and dialogic moment, or of a natural legalism of the universally inherent discursive moment.)) Put in somewhat more practical or practical-political terms, we can observe that many or most of those who attack the Coders as a way to relieve us of the burdens of constitutional hermeneutics do not provide an alternative at all. Those seeking this reverse-bootstrapping, this attempt to pull ourselves down feet first, seem to believe that we can still have constitutional governance even if we reject the assumptions necessary for constitutional governance. Either the Constitution, however amended or interpreted, is to be followed to whatever extent and in whatever ways practicable, or not. Either pacts are to be observed, or there are no pacts.

It is equally an absurd position to think that, to summarize a vulgar democratist critique of Originalism, making things up all over again according to the needs and interests of a present majority would be some simple solution or any kind of solution at all to the Originary Deficit. How, for example, will the present majority determine who is empowered to vote, who is going to be excluded on grounds of age, competence, location, naturalization, good conduct, and so on, and so on? How will the present majority (however determined) determine how long its decisions count, or prevent tomorrow’s majority (however determined) from reversing all of yesterday’s decisions either with new decisions or simple annulment or simply by ignoring them as utterly irrelevant 24-hour Originalism, not binding on people deciding today?

These questions merely touch on the difficulties, dangers, or simple impossibilities of some uncompromising realization of an absolute democratic or any other political ideal. The greatest minds ever produced by the human species have nearly broken, or some would say have broken, trying to solve such problems. It will prove no more artificial or unnatural or unjust or impractical to embrace an Originalism of centuries rather than an Originalism of a generation or a decade or the last vote. The Originalism of centuries has the “accumulated weight” behind it that Mr. Likko points to elsewhere, by now a weight of “experience” and long accustomization. The Originalism of centuries also includes the Originalisms of a generation, etc., but treats them for what they have been, as acts that, even where they added new Code, have done so in ways that re-validate the Primary Initial Encoding, in crucial part by being also written in OPM, and in so doing dissolve any strict division between text and context: The text and its interpretations via OPM are also factum. Every invocation of the Constitution is, via factum proprium nostrum, a re-validation of invocation of the Constitution. Every amendment or attempted amendent or attempted re-interpretation likewise re-confirms OPM as also fpn.

The Originalism of the Founding or of the Primary Initial Encoding has been renewed or is renewed every day we re-validate the Primary Initial Encoding through a long chain of yesterdays’ re-validations from whichever American here back to there.

7. “The People” Is a Time-Transcendent Concept or an Irrelevant Concept (Trans-Temporal Presumption)

So when do we get to exercise self-government? Because by your formulation it seems to me like we’re stuck with being governed by people who exercised self-government a couple hundred years ago, but are now entirely deceased; as dead as John Cleese’s parrot

The above comment was offered by Rod Engelsman against a rebuttal by Kowal in defense of his OPM Originalism. The way that Kowal describes his position is perhaps indicative for a problem with his approach. Kowal writes:

If the people are to be the ultimate authority of the Constitution – and again, in a self-government, they must – then it must be the understanding of the people at the time the law was enacted. If it is someone else’s meaning, then it might still be government, it’s just no longer self-government.

The phraseology does indeed seem to imply the existence of two “we”‘s, the “we who governed then” and the “we who are governed now,” but I think Kowal’s true position is that there is one “we,” a collective identity or plural personage that has existed continuously and distinctly at least since the Founding. It or we may have undergone evolution from that time, but we are still for the most important purposes (i.e., matters of inheritance, rights, citizenship, etc.) the “same” individual or legal person in approximately the way that adult Rod Engelsman and infant or maybe teenage Rod Engelsman are versions of the same Rod Engelsman.

We need not over-stress the metaphor: If we imagine that the Framers were babies, then we can easily imagine they were incompetent, for example. Yet “the sameness of the state consists chiefly in the sameness of [its] constitution.” ((Aristotle, The Politics, III:3.)) The point is that the Constitution is key to any actual constitution of what we mean by “we”: We are constituted as the people of the Constitution. In the language of the Constitution, we, or We, are “the People.” This concept (also a “conception”) is either a transcendental concept and a meta-concept, or concept of concepts, or an irrelevant concept. Some conservatives (the sane ones) are fond of the Burkean “pact with the dead and the unborn” to express a similar idea. Either the People or the American People is or are a single People capable of “constituting itself/themselves/ourselves,” trans-generationally or trans-temporally or immortally, once and forever, or there is no (or there is no longer the same) nation at all. Similarly, every today’s Living Constitutionalism is a bid to become tomorrow’s Origin, or it is meaningless, or: Every Living Constitutionalism of the Present Aspires to Become an Originalism of the Future. ((These are particularized definitional statements for any concept of decision or statement or action: An action is not actually an action until it is actual, has been enacted, been present and become past, made presently effective as basis for potential or future action and reaction.))

Originalism and Living Constitutionalism are two sides of the same problem, though recognizing as much is not to say that they are equivalent or simply arbitrary positions. To view a living constitution through the lens of an originalism is not the same act as to view an originalism through the lens of a living constitutionalism or constitutional vitalism. We never view any constitutional issue, or to say the same thing there never is a constitutional issue, without a reference to both. An originalism without vitalism is a dead originalism. A vitalism without an originalism has no meaningful existence. ((Or: A vitalism without an originalism has no existence as realization of a concept or as a “meaning”; it would have no ideational “sameness” or “identity”; would be pure spontaneity or meaningless activity, or activity awaiting assignment of meaning or attribution of significance. “Sameness” and “identity” both imply a paradoxical multiplicity or, if you will, “e pluribus unum,” or “state of united states”: To be the same as something else means that the something else is not something else at all, but the same something under different conditions. The word “identity” condenses (two-in-one) the Latin “idem et idem“: same and same.))

8. The Unity of the People Requires a Unity of Meaning

Mr. Likko raises an objection:

Where I take issue with [MacLeod] is that all the Supreme Court cases are doing is illustrating particular instances of what the text means — apparently, it is reasonable to make an arrestee do a strip-and-squat during a jail intake. Now we have a better idea of what the word “reasonable” means. But the Constitution still prohibits unreasonable searches and seizures.

Mr. Likko summarizes his position as “the text is all we have,” but I think he means “the text is all we have to count on,” since he clearly understands that the text is not absolutely self-sufficient, that we must bring meaning and experience to our interpretations of Constitutional provisions. He in fact advocates that we do the latter more freely than Mr. Kowal and other Originalists will. It appears to me that Likko’s true objection is to the idea that the Supreme Court is or should be trying to preserve a unity of meaning rather than replacing where necessary an old meaning with a new and improved one.

Maybe we can look at the Supreme Court as a bit like the Académie Française, but focused on politics and the law, tasked with ensuring that the crucial public meanings – original, contemporary, common, political, juridical – of American English remain aligned and intact. We can consider that for us it may be at least as important to maintain a believably reasonable and reasonably believable (and reasonably believably reasonable, etc.) unity of meaning between what “reasonable” means for us-today and what it meant for those-in-1791, as that we happen to protect particular individuals from possibly unreasonable searches and seizures, since, according to the theory of the American state, without the unified coherency and predictability of the law, recorded in language, all of us would be more vulnerable to unreasonable searches and seizures as well as other, potentially far worse dangers.

In other words, maintaining the all-important unity or identity of the People across the centuries may mean maintaining linguistic unity as much or more than anything else, legally as well as culturally and in the same breath, not so that the People of 2013 can be governed by the other People of 1791, but so that the People-2013 can remain protected by the People-1791, as well as by the People-1891 and the People-2091, and so all of “the others” can remain under “our” reciprocal protection as well. I use quotation marks, because this protection of “others” and “ourselves” would be a unitary act of self-protection and also of self-assertion, each as the other, both function and source of underlying unity, the preservation in establishment and vice versa of the identity of the People as essentially the same People through time and despite whatever changes. Our foundation and our aspiration are and remain the same: their achieved and re-confirmed similitude: for there to be one “our” only.

9. Objections – Authentically Constitutional Questions

Michael Drew raises a series of questions or objections that are difficult to answer, in part because they tend to test the limits of “reasonable discussion.” We are trying to discuss what in certain sense what “we” are or may be at all, as in some notional larger context of possible meaning, trying to leap into our own shadow, or trying to see ourselves from outside of ourselves. Authentic constitutional questions are always more profound than we are, because if they are not pre-constituting us, or the conditions of our very investigation, then they are not authentically constitutional.

I hope to look at Mr. Drew’s comment when time allows, including for its interesting misconstruals, by focusing as closely as possible on the particulars, and answering as conservatively as I can, but I am not sure that even my best efforts will be sufficient to keep the discussion within bounds.


Postscript: Rough Application of a Living Originalism to the 8th Amendment

Consider the phrase “cruel and unusual punishment” as it appears in the 8th Amendment text:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

That’s the whole thing, of course – kind of vague.

I think if we’re going to preserve TK’s notion of a “fixed” meaning being the same as an original public meaning, then we’re left with a “fixed relativity,” since “excessive” is an obviously completely relativistic notion. It doesn’t say 1 billion dollars for bail on a jaywalking charge is excessive, nor does it say 1 dollar or any bail at all on a jaywalking charge is excessive, nor does it give or really imply any specific numbers or formulae for objectively and always distinguishing an “excessive” fine from an “appropriately punitive” but still high fine. In regard to bail and fines, the Amendment refers implicitly to a concept of standard, normal practices, and I think it’s a fair inference that the same idea attaches to “cruel and unusual,” or ought to affect our understanding of it.

As TK noted during discussion, “cruel and unusual punishment” was something of a “term of art,” or anyway had a very specific history, since the words appear in the 1689 English Bill of Rights, and both it and much of the rest of the language of the 8th Amendment are lifted even more directly from Blackstone’s Commentaries on the Laws of England, the common reference and required study for all practicing lawyers in the late pre-revolutionary Colonies as well as in England.

OatesInPilloryThe further history of uses of the phrase reinforces a sense of the 8th Amendment as insisting in broad terms that judges and lawmakers hew to the middle, that they apply or make law moderately or according to precedent, not try to shock anybody or use a trial or sentence or punishment to make a personal point or settle a vendetta. The key background includes the punishment of a certain British official Titus Oates – himself an excessive prosecutor – who was singled out for a peculiar and harsh, or unusual and cruel, set of punishments that the English parliament specifically mentioned as being the kind of thing they wanted to make impossible. I find that interestingly self-referential – the cruel and unusual punishment of an unusually cruel punisher as an example of a whole inter-refractive zone of madness that a sober assemblage of gentlemen might hope to avoid altogether.  It’s also noteworthy that the phrase “cruel and unusual” is used in crucial, much more recent UN, EU, and international treaty texts.

In short, in the case of the 8th we may have a situation where the original public meaning at time or ratification, the intuitive contemporary public meaning, the historically informed public meaning, and national and international legal usages are all effectively the same, and are intended to be. Fixed relativity would mean that in all cases interpretation relies on an inherently variable, subjective, context-dependent set of judgments of “proportionality, appropriateness, and common decency”(referring to comment previously linked) though I think that “cruel and unusual” also clearly and perhaps most specifically extends to any judge or any other representative of the state tempted to work out personal or political enmities, agendas, manias, etc., against prisoners or defendants, or acting in any way impugning the reputation of the state itself under the then emerging concept of the liberal democratic state.

To put things somewhat speculatively, the 8th seems to re-affirm in a general and relativistic way the transition from a medieval to a modern concept of the state symbolized both in the Glorious Revolution as well as in the American Revolution, and particularly in relation to tyrannical exercises of authority. Monarchical and other forms of tyranny are very much “personal” forms of government, but the new type of state is supposed to be reasonable and fair, impersonal in a good way. In the modern liberal democratic state the purpose of the law is to serve the People, not the whims of particular individuals, and therefore also treats all citizens, even convicted criminals guilty themselves of showing unusual cruelty, as ideally equal, not potential targets of vindictive wrath and de-humanizing or terrorizing violence. Punishment can still be exemplary and even severe (in some absolute sense), but anyone who commits a crime should get the same kind of punishment for the same kind of crime as anyone else would.

17 comments on “Notes on A Living Originalism

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  1. The US Constitution, focuses on what the government cannot do to us, whereas other charters, concern what it can do for us, or two us, that was a ‘whole lot of sound and fury, signifying nothing’ as you go around in circles, what is the fundamental principle that you’re going for, around that you build the system.

    • Not sure how much more clearly I can state or re-state the aims of the discussion than in, e.g., Likko’s summary, or immediately afterward, or in the first section, or, actually, repeatedly throughout this collection of notes. I don’t propose a system: I seek to describe the system as it actually operates, by complementary and interdependent principles in search of a unity.

  2. Put it another way, what are the limitation on the system, sans the discretion of the officials,

    • What makes you think there is or can be final “limitations” on the system other than as arrived at concretely or politically, through its operation? In practice, given the will to make it work, it will achieve moderate or, if you prefer, muddled and intellectually un-satisfactory results. Any uncompromising ideal or theory, including an uncompromising ideal or theory of limits, will tend in the direction of a crisis of the whole state, which in “normal” times will be irrelevant, but in abnormal times, or at the final failure of the system, will produce the exceptional circumstance and potential dissolution or replacement of the system, or a new constitution or, if it comes to that, constitutions. Any written constitution will always be subject to the originary deficit between description and described, word and reality, pre-programmable routine and environment, and so on. Any limited government will interact with illimitable contingencies, unpredictable problems, insufficient prescriptions, etc., from the first moment of its operation, and immediately begin to contradict whatever limiting precepts. Conservatives grasp this concept somewhat intuitively when it comes to economics. Merely putting, or imagining that one has put, one’s governmental concept in purely or mainly negative form does not solve the problem, or relieve government from the necessity of positive action, though it does potentially shape the discussion and add encumbrances.

  3. Not sure I have anyting of substance to add, since between your and Likko’s fine posts and ensuing discussion there I’m not sure there is anything to add. It all reinds me of the Nature/Nurture or Deontologicl/Consequentialism discussions where the 2 poles taken too restrictively have no basis of interaction, or taken too loosley become identical.

    My defualt position is to take Originalism as somewhat useful, but frequently used as merely an ideological sledge hammer used to assert with no real argument. While Living Document may potentially be used the same way, the idea doesn’t have the rhetorical or political appeal of “The Founding Fathers wisely…”.

    Of course the level of discussion a OG is quite high and I don’t mean to imply any of the participants there use anything but scapels.

    At any rate, some kind of hybrid, or perhaps vibrating at a high frequency position seems in the end the only sensible one.

    First rate job!

    • Thanks again, bob, not least for balancing the thread-scales against my arch or only nemesis don miguel.

      It all reminds me of the Nature/Nurture or Deontologicl/Consequentialism discussions where the 2 poles taken too restrictively have no basis of interaction, or taken too loosely become identical.

      …is crisply and economically stated. It’s Jerusalem and Athens again, too.

  4. This is a Socratic dialogue, what is the purpose of the thing, Locke had a notion, that the protection of life, liberty and the pursuit of property, was a nifty idea,

  5. While many take it as a given that the Framers wished and succeeded in forming a govt based on the idea of limited govt, it aint necessarily so. Like any good Lenninist vangard the Framers understood that it would not do to just let people rule themselves. For the Framers, the interests (reconceived as rights) of the Minority ie rich people, might very well be overwhelmed by the passions of the Mob.

    How are we to regard this as limited govt? The Framers structured 2 1/2 of the 3 branches of govt to favor the Minority over the Mob. What is limited is the Mob’s ability to to exercise its sovereignity.

    Whatever the legal merits of Originalism, as an ideology, its purpose to to maintain this govtmental structural advantage of the Minority. It is rhetorical genius to state this in terms of limited govt.

  6. self government was an exotic offering, it had collapsed in the aftermath of the Pelopenessian war, and the internecine conflicts of the Roman republic, they were certainly trying to avoid that circumstance.

    • well – not quite that exotic. There were numerous examples of self-governing republics and mixed systems, especially in Italy, but in a range of different situation including England and the Colonies between the fall of the Roman Republic and 1776-87. Not that the Americans did not set unique goals and come up with unique answers.

      “Limited” means more than limiting the multitude or the poor, though clearly the thought that the mixed system and the sole type of government that Aristotle actually considered a true “polity,” was the goal, not “democracy,” which for classical political science remained the name of an inferior form of government. Today there may be a general sense, of widely accepted fiction, that true political equality without true economic equality is possible, and that either or if not one or the other then both would be achievable, desirable if achievable, and sustainable.

      For many among the Founders and Framers, it was taken as something of a given or at least a very reasonable theory that only the economically secure would have the free time and relative disinterest, or greater interest in the long term and the general welfare, to govern wisely. It’s believed by some historians, however, that by the time the Constitution was enacted a more jaundiced view had set in, approaching desperation, about the true positive prospects of self-government. In other words, the Madisonian limitations in general and the checks on majority tyranny in particular may have embodied a deeper pessimism about democratic-republican governance. The theory and the official narrative are therefore contradictory, in a way that seems to encourage the very people and forces, on today’s right and left, most likely to be disappointed.

  7. Yes, Florence and Milan, but that was even a shorter interlude, despotism has been too often, the default state of the human condition, a lesson we seem utterly unwilling to consider, sometimes a tyrannical sovereign provokes an equal reaction,

    • Not just Florence and Milan, by any means. The list of experiments in self-government is a long one, just in Europe, including among tribal and illiterate peoples, and also in North America. The Iroquois Federation was considered an influential example on the Founders. In England, the expansion of the powers of Parliament had been ongoing, and there had also been the Levelers, the Radical Whigs, and the Commonwealth. Self-government had grown up in the Colonies partly as a pragmatic matter, but also as a realization of religious and even somewhat utopian aspirations in many places.

      It’s also greatly underestimated, and almost forgotten except among scholars and aficionados of the Founding period, how much the “laboratory of democracy” was a lived experience of the 1780s. There were radical experiments in democratic-republicanism across the colonies, some of the purest experiments of that type ever tried out on human beings. The somewhat depressing results may have been as much in mind for the Framers as the lessons of their “liberal” education that seemed to be confirmed in them. The pattern was also set that arguably is the “trademark” of Americanism, defined by Schmitt as “economic presence, political absence,” since the same depressing period was also overall a period of economic dynamism and expansion, as well as boom and bust cycles. The experiment in limited government or “freedom” or minarchism verges on an experiment in anarchism in a ground highly conducive to anarchistic development. Consider the expropriation of the continent itself, the chief historical task of the nation’s first century. It was mainly achieved, other than through the non-intentional communication of pathogens, through the generally ungoverned activity of migratory populations, who continually acted against or beyond the will of the central government, whose often despondent high officials would afterwards find themselves ratifying the latest conquests. The uses of slavery occurred in a similar way, as central government was never powerful enough, or allowed to be powerful enough (same thing) to enforce its evident ideals against the immediate interests of the slave states that also happened to be the immediate larger economic interests of the whole state and even of the West generally. In this way, the British and European economic interest was likewise continuously “present” in the former colonies even after the Crown was forced into political “absence.”

      I’m referring to recent scholarship on the economic importance of slavery or the products of the slave economies to the introduction of capitalism and the factory system in Britain. Eventually, as we know, industrial capitalism developed its own form of wage slavery. Again, the limitation on government or the political (also incidentally a critical limitation on the politicization of “religion”) allowed for continued operation of a system whose concrete character – what it did to people – ought to have contradicted any conceivable humanist ideal. I point this out not to fill you or anyone else with shame, since – I wonder if I may regret writing this – I don’t claim to know of a superior or even possible alternative to slavery, effective slavery, genocide, imperialism, and war for the process of moving beyond slavery, effective slavery, genocide, imperialism, and war. America and Americans weren’t unique in these tendencies,they were just uniquely positioned to force them further along to their own opposites, to a world order of less slavery, less genocide, softer imperialism, and alternatives to war. There is no Archimedean point external to the world available to us to pass judgment on this world, or, more accurately, anyone who reaches it will have done so in a spacecraft built by slaving genocidal imperialist warriors and by no one else.

      • Actually no, the slave economy, ran counter to the more industrialized nationalized economy, it was more strictly tied to British economic interests (Amanda Foreman’s World on Fire, showed how tightly) and that of the French, which at the time of the Civil War, was working off one of those results of revolutionary exuberance spoiled rotten)

        • That occurred later – the contradiction between the plantation system and the new industrial base. That industrial base was itself built on a foundation of slavery, in part directly, but also indirectly. All that cotton wasn’t for stuffing pillows at Tara and making underthings for Scarlett. It was being sold and shipped out. The recent scholarship to which I referred has sought to quantify the contributions of the plantation system, and has suggested that they were critical and indispensable to the actual development of North America and the interdependent development of European capitalism. The argument is, of course, mainly framed as a moral indictment of the West, from the Left. That it echoes an argument made by the slavers once upon a time on their own behalf is one of those indicatively unspeakable ironies of history.

  8. Actually the reverse is true, the Constitution was an upgrade from the exceeding minimalist Articles,

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