Monday, April 20, 2009

Originalism is Bunk, Says Berman

Mitchell Berman, University of Texas, has published Originalism is Bunk, 84 New York University Law Review 1 (2009). The article endeavors to "catalogue and critically assess the varied arguments proferred in originalism's defense." From the abstract:
Originalism is “hard” when grounded on reasons that purport to render it (in some sense) inescapably true; it is “soft” when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches. That is, hard arguments seek to show that originalism reflects some sort of conceptual truth or follows logically from premises the interlocutor already can be expected to accept; soft arguments aim to persuade others to revise their judgments of value or their empirical or predictive assessments. The most common hard arguments contend that originalism is entailed either by intentionalism or by binding constitutionalism. Soft arguments claim that originalist interpretation best serves diverse values like democracy and the rule of law. I seek to show that the hard arguments for originalism are false and that the soft arguments are implausible.

The upshot is not that constitutional interpretation should disregard framers’ intentions, ratifiers’ understandings, or original public meanings. Of course we should care about these things. But originalism is a demanding thesis. We can take the original character of the Constitution seriously without treating it as dispositive. That original intents and meanings matter is not enough to render originalism true.

1 comment:

MasterWooten said...

Originalism is the ONLY proper way to interpret a constitutional document where laws are made by a democratically elected legislative body. The judges who interpret the law and who are neither responsible for making the law nor accountable to the public are in no position to interpret the law outside of the bounds set by its framers. To do ortherwise is to usurp both the democratic and lawmaking process.

I realise that some people think it "intelligent" even "intellectual" for judges to extrapolate on existing law, but simply put judges are not seized of the duty to do so.

Judges MUST interpret ALL laws as they see themin their original form, intent included as that is the word of the people through their democratically elected representatives. Any and all changes must come by the people through their democratically elected representatives as a response to the effects of the law as interpreted in original form bu the court and enforced by the government.