Re: question

At 11:29 PM 6/1/2006, David Opderbeck wrote:

>While I'm not really a constitutional
>originalist (as is, for example, Justice
>Scalia), I do think the starting point for an
>constitutional analysis has to be the historical
>framework of the text -- very much like an
>exercise in Biblical exegesis. If a
>contemporary application of the text is utterly
>foreign to its historic framework, something
>probably is wrong. In my view, that's the case
>with how the establishment clause has been interpreted.

@ If you're not a constitutional originalist
(like me), you sure sound like one. For instance:

Excerpt of Scalia's remarks 3/14/05:

Originalism: then and now

"...I am one of a small number of judges, small
number of anybody ­ judges, professors, lawyers ­
who are known as originalists. Our manner of
interpreting the Constitution is to begin with
the text, and to give that text the meaning that
it bore when it was adopted by the people. I’m
not a “strict constructionist,” despite the
introduction. I don’t like the term “strict
construction.” I do not think the Constitution,
or any text should be interpreted either strictly
or sloppily; it should be interpreted reasonably.
Many of my interpretations do not deserve the
description “strict.” I do believe, however, that
you give the text the meaning it had when it was adopted.

This is such a minority position in modern
academia and in modern legal circles that on
occasion I’m asked when I’ve given a talk like
this a question from the back of the room ­
“Justice Scalia, when did you first become an
originalist?” ­ as though it is some kind of
weird affliction that seizes some people ­ “When
did you first start eating human flesh?”

Although it is a minority view now, the reality
is that, not very long ago, originalism was
orthodoxy. Everybody, at least purported to be an
originalist. If you go back and read the
commentaries on the Constitution by Joseph Story,
he didn’t think the Constitution evolved or
changed. He said it means and will always mean
what it meant when it was adopted.

Or consider the opinions of John Marshall in the
Federal Bank case, where he says, we must not, we
must always remember it is a constitution we are
expounding. And since it’s a constitution, he
says, you have to give its provisions expansive
meaning so that they will accommodate events that
you do not know of which will happen in the future.

Well, if it is a constitution that changes, you
wouldn’t have to give it an expansive meaning.
You can give it whatever meaning you want and,
when future necessity arises, you simply change
the meaning. But anyway, that is no longer the orthodoxy.

Oh, one other example about how not just the
judges and scholars believed in originalism, but
even the American people. Consider the 19th
Amendment, which is the amendment that gave women
the vote. It was adopted by the American people
in 1920. Why did we adopt a constitutional
amendment for that purpose? The Equal Protection
Clause existed in 1920; it was adopted right
after the Civil War. And you know that if the
issue of the franchise for women came up today,
we would not have to have a constitutional
amendment. Someone would come to the Supreme
Court and say, “Your Honors, in a democracy, what
could be a greater denial of equal protection
than denial of the franchise?” And the Court
would say, “Yes! Even though it never meant it
before, the Equal Protection Clause means that
women have to have the vote.” But that’s not how
the American people thought in 1920. In 1920,
they looked at the Equal Protection Clause and
said, “What does it mean?” Well, it clearly
doesn’t mean that you can’t discriminate in the
franchise ­ not only on the basis of sex, but on
the basis of property ownership, on the basis of
literacy. None of that is unconstitutional. And
therefore, since it wasn’t unconstitutional, and
we wanted it to be, we did things the good old
fashioned way and adopted an amendment.

Now, in asserting that originalism used to be
orthodoxy, I do not mean to imply that judges did
not distort the Constitution now and then, of
course they did. We had willful judges then, and
we will have willful judges until the end of
time. But the difference is that prior to the
last 50 years or so, prior to the advent of the
“Living Constitution,” judges did their
distortions the good old fashioned way, the
honest way ­ they lied about it. They said the
Constitution means such and such, when it never meant such and such.

It’s a big difference that you now no longer have
to lie about it, because we are in the era of the
evolving Constitution. And the judge can simply
say, “Oh yes, the Constitution didn’t used to
mean that, but it does now.” ..." [snip]
~ Remarks by Justice Antonin Scalia at The
Woodrow Wilson International Center for Scholars
in Washington, D.C, March 14, 2005. His speech
was entitled: "Constitutional
interpretation" Read it in its entirety
here: http://www.joink.com/homes/users/ninoville/ww3-14-05.asp

As far as I'm concerned, both the church and the
legal profession leave MUCH to be desired today
because each has (for the most part) exchanged
objective, sound hermeneutics for the unsound
(subjective), confused thinking of postmoderns .

I think Justice Scalia would agree with what Dr
John Warwick Montgomery says about the legal
profession in this essay,
entitled: Hermeneutics, Legal and Theological:
An Exercise in
Integration http://www.jwm.christendom.co.uk/unpublished_essay.html

As I said, you sound to me as if you are an
originalist based on what I've seen you write, so
if you have time, would you explain in what way
you would disagree with these two men?

~ Janice
Received on Fri Jun 2 09:03:00 2006