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originalism.html
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In Defense of Originalism - rouking's wordhole
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<h1> In Defense of Originalism in Interpreting Law </h1>
<p>
This time, I'm doing exactly what I told myself I should avoid: I'm writing about politics. More importantly, though, I'm writing at all, and I think that's a step in the <i>write</i> direction. Sorry.
On a quick personal note, I do feel it necessary to sharpen my dad jokes for two reasons. One, my eldest brother and his wife may be trying for a child soon, and dad jokes also work as uncle jokes.
Two, I have found a wonderful partner with whom I fully intend to spend the rest of my life, and part of that (though far in the future still) will be having children of our own.
Let's get back to the content...
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<p>
With several major Supreme Court decisions recently, the topic of how we ought to interpret old documents is once again on the front burner.
For context, originalism refers to a doctrine of interpreting legal documents according to their original intent, which often involves historical research.
Before diving into my argument, I'd like to address some tangential yet important topics.
</p>
<p>
First, I am not attempting to weigh in on the debate over the usefulness of the Constitution.
I know many anarchist leaning readers will be quick to point out that it has not, in fact, stopped tyranny.
Others may rebut that it has at least slowed down tyranny.
In any case, we must contend with the reality that most people believe in the legitimacy of the extant political system, and this system is rooted in the Constitution.
Therefore, how people think about interpreting that document is relevant and has real impacts on society.
</p>
<p>
Second, I am not attempting to weigh in on any specific hot-topic political issues linked to the recent Supreme Court decisions.
Worry not: I do have my opinions ;), but this is not the article for them.
However, it seems necessary to preempt any conclusion-jumpers by pointing out that I am merely attempting to argue for the most technically correct method for interpretation.
Originalism will dictate that the overturning of <i>Roe v. Wade</i> was the "correct" decision.
In saying this, I am not asserting any opinion about the issue of abortion; I am merely saying the court's decision was constitutionally sound.
If you still believe in the system, work within it to get laws passed which align with your views rather than arguing with the interpreters or trying to intimidate them into dishonesty.
</p>
<p>
Third, I'd like to clarify that the previous paragraph is not intended to make the topic of this article one particular case.
Other far-reaching decisions were made recently which prompted me to think about originalism.
Think regulatory power and carry rights.
With all that out of the way...
</p>
<p>
You will hear people refer to the Constitution as a "living document," usually as part of an argument against originalism.
These two concepts are not at odds with one another.
There is a subtle but very important distinction between applying the original intent of a clause to modern times and interpreting a clause without any regard to changes in circumstances.
For example, it is valid to include modern weapons when interpreting the Second Amendment's definition of "arms."
The meaning of the word was not fundamentally changed, only updated to reflect improvements in technology.
It would be ridiculous to say that any mention of "arms" should be limited to exactly the weapons which were available at the time of writing.
Many of the Constitution's writers had state-of-the-art-for-their-time weapons, so it is absurd to claim they had no concept of the technological improvement of weaponry over time.
Those who would argue for the restriction of the Second Amendment to muskets and cannon would most likely be very upset if a similar argument were made about gun restrictions, i.e. that they ought not to apply to any weapons
invented after the passage of the law.
By now you have probably deduced my opinion on gun rights, but as far as today's subject goes, I am only asking for consistency.
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<p>
Many of us have suffered through Shakespeare in the course of our education.
Somehow his writings have a reputation in popular culture of being high-brow or fancy, something enjoyed by brandy-sipping aristocrats and elbow-bepatched history nerds.
In reality, Shakespeare plays are quite simplistic, low-brow, and crass.
The distorted popular view results from a lack of historical contextual knowledge.
At a glance, the writings seem unapproachable and snobbish because of ye olde Ænglish, but once educated on the meaning of the words in their historical context, one can see nature of Shakespeare as a sort of early trash TV.
Indeed, Shakespeare plays were aimed not at high society but at the masses.
In fact, that was their real innovation and why they are historically notable. But I digress.
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<p>
The Constitution should be thought of similarly, in the sense that the accuracy of our interpretation is colored by the extent of our historical contextual knowledge.
Some of the more confusing bits of language in the Constitution for the casual—and indeed even the so-called educated—reader are <i>duties</i>, <i>imposts</i>, and <i>excises</i>.
Properly understanding this language requires a good amount of <a href="https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2649&context=caselrev" target="_blank">historical research</a>.
I believe these words provide an excellent starting point for understanding why originalism is needed, because they are obscure enough that their use has faded instead of their meaning being distorted.
Therefore, the only reasonable path to understanding is through historical contextual research.
If you believe in consistency, this should be sufficient to convert you. If not...
</p>
<p>
Say we wish to go down the path opposite to originalism, that we ought to interpret language according to modern definitions and conceptions whenever possible.
Practically speaking, how does the court proceed with that?
Should each side present as evidence recent surveys of the populace as to the meaning of a word or phrase?
Will reliable, up-to-date surveys always exist?
If they don't, is it the court's duty to conduct one?
Perhaps courts will use dictionaries instead to avoid these concerns.
I do not believe it is wise to effectively place legislative power in the hands of dictionary publishers.
</p>
<p>
Let's assume for the sake of argument, though, that dictionary publishers do not take advantage of their newfound position.
What happens if a genuine change in meaning occurs which would make a law patently absurd?
You may argue that language changes gradually and such a thing would never happen, but consider the slang use of "bad" to mean something along the lines of good.
Today's slang is tomorrow's standard English.
This would put the law in the hands of those who swing popular culture, including the media and celebrities, neither of which can be trusted.
One concept central to the democratic republic is that the republic part moderates popular fervor, preventing temporary swings in public opinion from being reflected in law.
Those who are still believers in the system should therefore be opposed to the influence of popular culture on legal interpretation.
</p>
<p>
Rejecting originalism would have us running scared of writing new laws or contracts, for fear that their meaning will be twisted into something perverse despite the best intentions at the time of writing.
The point of law is to establish order and consistency, but without originalism we lose consistency across time.
Without originalism we also lose the separation of powers, since the courts will become legislatures in all but name, avenues for angry groups to impose their frenzied will instead of bastions of consistency and moderation.
Always remember that whatever door is opened for your righteous cause remains open for your enemy, and whatever is easily won can be easily lost.
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