This article by Jack Balkin is a lot of fun to read. I especially enjoy it because about 18 months ago I made a very similar, but much cruder, argument in the post of a blog that no longer exists. I used what I thought was a pretty clever heuristic in imagining that the Constitution, as ratified, had contained a prohibition on schools teaching scientific propositions that are not true.
The upshot was supposed to be that if you're a Scalian sort of originalist, you're commited to the proposition that schools today would not be prohibited from teaching the theory of spontaneous generation, even though that theory was disproved in 1862. After all, the Founding Fathers, during the ratification process, would not have considered the theory of spontaneous generation to be prohibited by the hypothetical Constitution.
Anyway, it's a very well-written article, and will be of special interest to those who, like me, very much dislike the tendency in most discussions for underlying principles to be ignored in favor of more superficial - and often extrinsic - considerations.
2 comments:
Yup. He explains it pretty well. The only thing left is to give his interpritation a name. I suppose we can just call it "originalism" and then get into a fight about what that means. Hmmm... Maybe "meaning-originalism" as opposed to "outcome-originalism".
He's calling it "the method of text and principle" in the article, but yeah, I think "meaning originalism" is better. Or maybe "Original Meaningism"?
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