Tuesday, May 31, 2022

The Supreme Court and the Originalist Fallacy | Washington Monthly

This week is the right time to take a solid look at “originalism,” the fashionable right-wing theory of constitutional interpretation. As practiced by conservative judges, “originalism” far more closely resembles a solicitation email from the finance minister of Tannu Tuva than actual legal reasoning. That’s because, as a judicial theory, “originalists” claim that judges can study history and come up with a determinate result to contemporary legal questions. And they are right—as long as they, and the conservative legal movement, control what evidence the courts may consider.

via washingtonmonthly.com

The thing that I find so odd about originalism is how obvious it is. It should probably be called something less legal and technical sounding, although I don't have any suggestions. Here's how I think of it. Say Bill and his Dad work in a shop that makes things. They have a tool, which they call "the thingamajig," which is actually a sort of small, strangely shaped vise, very handy for making the sort of thing they make. In his will, Dad leaves the thingamajig to his pal, Dave. When the executor of the estate is passing out Dad's goods, he is going to have to enquire, lo, what is this "thingamajig?" His son, Bill, will tell the executor that it is the small vise, indeed, it's that one, over there. If Bill has also died, and no one happens to know what the thingamajig is, you will have to comb through the written records to see if perhaps Dad referred to the thingamajig somewhere. In this case, Dad left some drawings with a small vise labeled, in his distinctive, spidery hand, "thingamajig," so this story has a happy ending. It's pretty easy, in truth. It gets a little harder, but only a little, when you refine it and speak of "public meaning originalism." This just means you take words to mean what they mean publicly, as you would words in a contract. So if you say "My 1957 Ford Coupe" it does not mean your 2021 Chevy Corvette, even if you are deluded in some weird way and actually think your Corvette is a 1957 Ford Coupe. If you sell a 1957 Ford Coupe and deliver a 2021 Corvette instead to your buyer (who bought your "Coupe" sight unseen), you're probably going to be in trouble, and not just because Ford people often don't like Chevys. There are more controversies and factions among Originalists and I know what I think, which is obviously correct, but the Second Amendment is pretty clear to anyone willing to look in good faith at the historical record of the original public meaning of the words and sentence involved. There are plenty of hard issues in US Constitutional law, but the Second Amendment is not among them.

We have here an article by Mr. Epps, who really doesn't like guns, and he doesn't seem to like constitutions much either. Me, I like guns moderately, though I don't love them, but I definitely do like constitutions. I'm certainly glad we have one, though I wish we followed it much more closely than we do. I'm glad we have a widely armed population because this makes it much less likely we'll end up in a police state. The response of the gun control people is some version of "You don't have to worry." But I do worry. When seconds count, the police are only minutes away, and sometimes the police are the problem. Woe to us if that's ever the case, but lots of Jews must have wished they had rifles when the Gestapo knocked on their door. Ask an African-American husband and father what he thinks about guns, and if he's honest, he'll probably tell you he keeps a shotgun or a pistol to protect his family against criminals, who might sometimes be the same as the police. The latter is the police state part.

Fortunately, a majority of both the population and the judiciary of these here United States support, however reluctantly, gun rights at the present time. I heard on the radio recently that about 60 percent of Democrats support something like outright gun confiscation. That's a lot but it would be what, about one-sixth of the total population of the US? Probably less. And much smaller percentages of Republicans and Independents. For better or worse, we live in a low trust society at the moment, and one sign of that is how many guns are out there. But in short, nobody is going to be taking your gun any time soon. You have a constitutional right to be armed. But you also have the right of free speech and religion, and look how that's going. But we still have the rule of law, ragged though it has become, standing between us and the various governments that want to protect us against ourselves, our speech, our religions, and our guns. And I'm very glad we do.

The idea of our state government in California is to make guns so inconvenient to own and use and so ugly to look at, via regulation, that you won't want to buy them. This may work in California, given time, but I very much doubt it will work in any Western state east of the west coast. We'll see.

In the meantime, it would be a good idea to harden schools, movie theaters and so on against mentally ill shooters and hire police officers willing to do their admittedly dangerous jobs.


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