Posted by Ilya Somin:
Distinguishing Origninal Meaning and Original Intent:
http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1156034935
Lawprof Larry Solum of the Legal Theory Blog [1]laments:
From the perspective of a constitutional theorist, I am frequently
baffled, frustrated, and confused by the carelessness with which
the theoretical foundations of debates about original meaning are
articulated, both in the blogosphere and in contemporary
constitutional scholarship. How can it be that the distinction
between the various forms of originalism are still ignored? Can
anyone really have missed the shift in originalist thinking from
original-intentions originalism to original-meaning originalism?
Most contemporary originalists believe that the relevant inquiry is
into the original "public meaning" of the constitutional provision
at issue. Hardly anyone thinks that the intentions, expectations,
or purposes of the framer's are independely entitled to
interpretive authority--although they may be evidence of original
public meaning.
I definitely share Larry Solum's frustration. Sadly, the confusion is
not confined to the blogosphere and "contemporary constitutional
scholarship." Supreme Court Justice Stephen Breyer also does not get
the distinction between original meaning and original intent (or at
least does not realize its importance), as I explain in Part III of my
forthcoming [2]review of Active Liberty: Interpreting our Democratic
Constitution, his recent book on constitutional theory. Breyer also
conflates originalism and textualism (which need not require any
reliance on original meaning OR intent). These two distinctions are
not just academic hairsplitting, because original intent, original
meaning, and textualism often lead to widely differing results in
real-world legal controversies.
Perhaps future Supreme Court nominees should be required to explain
the difference between original meaning and original intent during
their confirmation hearings! It would certainly be more fun to watch
than the hearings we have now - at least for Larry Solum and me.
References
1. http://lsolum.typepad.com/legaltheory/2006/08/the_fourth_amen.html
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=893668
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