Last weekend Kaili Joy Gray (Angry Mouse) posted a front page diary chastising liberals for not supporting the Second Amendment as an inviolable individual right. While there's much to dispute there, particularly the use of classic NRA approved fallacy arguments, (and here is an excellent reply and another poignant one) the ensuing intra-left fracas over the "original" meaning of the Second amendment reminded me how such debates are generally useless and unresolvable. It appears that along with the right's manifest victory in the US gun debate, as evidenced by convincing even large numbers of liberals to adopt their position, they also succeeded in having liberals absorb the silly pursuit of original meaning in order to resolve important social and philosophical questions around ambiguous legal language.
The Intuitive Appeal of Originalism
Like so many issues that fall into a classic left-right divide, the right wing position on Originalism benefits from simplistic "common sense" virtues. In daily life, words have meaning, usually unless someone is being clever with some kind of double entendre, poetry or witticism, their words mean one particular thing, and even if one can contrive another meaning out of the words, both parties usually know what the intended meaning was by the context. Further, most everyone despises legal pedantry in the form of intricate and nearly indecipherably dense legal contracts ostensibly made necessary by disingenuous lawyers creatively interpreting clauses to twist the intended meaning. So there's already some good reasons to favour plain language obvious interpretations coupled with the natural human tendency to believe that one's unthinking assumptions about the meanings of words are shared by all.
In daily life, this sort of originalism is useful and necessary. When it comes to interpreting an email from your boss, or a note from your spouse, they probably aren't going to write something in a deliberately ambiguous way out of some inability to decide what meaning they want to convey.
One reason the 2008 election is vitally important can be summed up in two words: Global warming. Another reason can also be summed up in two words: Supreme Court. I hope to write about global warming as well this weekend, but this diary is about Supreme Court.
Both, however, have the same underlying theme: while winning the 2008 is vitally important, it is necessary, but not sufficient. Indeed, neither global warming nor the Supreme Court should be the real focus of our attention, as they are but the most prominent outer manifestations of larger systemic struggles.
What is really needed is a much more sweeping and fundamental reshaping of our collective thinking--and that can only come about through a reshaping of our public institutions.
A couple of weeks ago, law professor Jack Balkin wrote a very significant post on his Balkinization blog, The Rise of the Conservative Legal Movement-- An Exercise in Living Constitutionalism, which revolves around a couple of very significant points: (1) despite the rhetoric of "original intent" as revolt against the liberal approach of the "living constitution," what the conservatives were doing was creating their own version of the living constitution. (2) What's involved in doing this is very much an example of a Gramcian "culture war" or "war of position," (though Balkin doesn't call it that) which I have discussed on various previous occassions. This involves graning control of cultural institutions-either by takeover of existing instutions or creation of new ones-which in turn results in systematic and interlocking redefinitions of funamental assumptions. It means, quite simply, a struggle to redefine what is thinkable.
Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.
That may sound strange given the familiar associations between conservatism and originalism, but in fact conservative legal thought is a major contributor to the living constitutionalism of the present generation. Originalism and a call for a return to origins was one of the tropes that conservatives, like many other social and political movements before them, used to persuade people to reform constitutional law.
