This week’s NYTimes Magazine article on juristic originalism, “How Will Trump’s Supreme Court Remake America?,” seems to provide a definitive context for thinking about Constitutional interpretation.
The title is misleading in that the article is not really concerned with consequences of the given SCOTUS bench, but rather with conceptual issues of originalism. Ms. Bazelon’s long article is a fabulous mix of anecdote, references to keynotes of legal theory (largely undiscussed, but made available in one set of links), emphasis of central themes of originalist controversy, and synopses of some past SCOTUS decisions. (Particularly interesting is that there is recently-available evidence which decisively undermines the gun libertarianism of the NRA: The Founders and their ratifying contemporaries had only military concerns in mind.)
I was eager to comment, but what can be useful in 1500 characters or less about a very elaborate discussion of legal hermeneutics?
So, I made my comment a diluted version of detailed dwelling with the article, which my eventual comments would implicitly trope or allegorize: I copied every fleeting phrase and paragraph segment that essentially pertained to the article’s examination of originalism, for and against, and grouped it all into 13 foci. Then, I posted a distilled version.
I’m not now going to do a detailed discussion of the 13 foci, but this posting is a promissory note for detailed discussion soon, re:
- Framer’s intent
- Framer’s sense of institutional system
- facts of stable historical decision precedent (stare decisis)
- Constitution as living institutionality
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- purpose of the law
- interpreting law purposefully
- interpreting law knowledgeably
- interpreting law contextually
- interpreting law consequentially
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- applying Framer’s meaning
- liberty: right of decision; right to reasoned action
- “motivated reasoning”
- ideologicality of originalism
