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View Diary: Justice Scalia says Revolution may be necessary (185 comments)

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  •  Originalism is laughable hermeneutics (8+ / 0-)

    That's the problem.

    "Originalism" is not merely indefensible in contemporary exegesis and hermeneutics, it was anachronistic by the 1920's. The idea of "original intent" has been rejected as impossible by philosophers of meaning since at least the Logical Positivists.

    The New Critics weren't just folks with skeletons in their closets or folks vomiting over the excesses of Romantic biographical theory. They, of course, substituted one (silent) authority over another, but it's been since them that the idea of an original, recoverable intent has been retrograde.

    A rational approach to "originalism" would ask, "What did each word mean then? What discourse samples do we have from the authors using the words? What discourses do we have in legal codes using those phrases, at the time? We need them in that syntactic position, and then we need to know what each member of the corporate voting body that approved the document believed he was approving, since the document "as intended" is, in fact, a deferred intention of voted approval rather than mere authorship." It would take fifteen years and give no answer, per line.

    "man, proud man,/ Drest in a little brief authority,. . . Plays such fantastic tricks before high heaven/ As make the angels weep; who, with our spleens,/ Would all themselves laugh mortal." -- Shakespeare, Measure for Measure II ii, 117-23

    by The Geogre on Sun Apr 20, 2014 at 12:33:32 PM PDT

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    •  Hey, cool. (1+ / 0-)
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      The Geogre

      Check out my own (somewhat more layman-ish) expression of the problem, in a couple of other comments herein, and see if my statements cohere with yours.

      To put the torture behind us is, inevitably, to put it in front of us.

      by UntimelyRippd on Sun Apr 20, 2014 at 01:29:49 PM PDT

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    •  Well, there must be some inquiry as to what (1+ / 0-)
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      The Geogre

      Jefferson, Madison meant, and what the population took the Constitution to mean.  The Constitution is an organic legal document, and code of government.  No living Constitution can be interpreted in the light of present circumstances without some real understanding of what it meant to those who adopted it.  Yes, there were conflicts, and divergence of opinion, but these can be understood by understanding the course of history, and not just legal history.

      Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

      by StrayCat on Sun Apr 20, 2014 at 03:49:56 PM PDT

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      •  Of course (1+ / 0-)
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        StrayCat

        People who get legislative history are looking into a likely meaning of the objectives at the time, but they're not trying to recover an original intent of authors. The 2nd amendment is one of the places where legislative history explains the oddity of the language -- the "well regulated militia being necessary," as an introductory adverbial. Scalia's position implies a single author and this author's intent as being fully present in the language and completely understood by the ratifying authority and the ratification being of that intention.

        Historical context is good. It's a way of helping to get context for understanding the differences in language. Scalia's position is based on a form of Bible reading.

        "man, proud man,/ Drest in a little brief authority,. . . Plays such fantastic tricks before high heaven/ As make the angels weep; who, with our spleens,/ Would all themselves laugh mortal." -- Shakespeare, Measure for Measure II ii, 117-23

        by The Geogre on Mon Apr 21, 2014 at 03:39:14 AM PDT

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    •  Yes, it's impossible. (1+ / 0-)
      Recommended by:
      The Geogre

      But not for Antonin Scalia.

      Marx was an optimist.

      by psnyder on Sun Apr 20, 2014 at 07:00:42 PM PDT

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