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November 05, 2007


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Any reason why the court couldn't decide that a caste is being created between the rich and influential (doctors, lawyers, professors, businessmen...etc.) vs. blue collar workers and the like?

What distinguishes the different "castes" as far as social/economic opportunity goes from the caste system that you seem to think applies to abortion?

For all of your explanations, Strauss still seems to have an edge here, and that is that the generality of the ideas behind the constitution is still open to great variance, assuming that you can come up with some kind of general basis at sometime during the constitutional creation era and/or the text of the constitution itself.

Is there any stability here, especially in light of Scalia's argument that the constitution is a legal, and not an ad-hoc document?

It seems to me that creative people could do just what you've done here, and tie A LOT of potentially strange meanings to the text of the constitution and/or the philosophies behind the text. This is not exactly what one would expect from an "originalist."

And rightly so, I think.


A great deal of intellectual firepower is being flashed around in the "originalism" discourse.

The term itself emerged from a partisan conservative effort to constrict the permissible scope of what might count as a valid constitutional proposition of the form "X has/is a right that is protected by the Constitution."

The feeling behind that effort is that "too many" types of persons and interests have been appearing lately in the role of X (supra). That unsympathetic sort of feeling is a far more important component in the originalist doctrine than any of the arguments made in its behalf.

It is also the most serious reason to debunk "originalism" as the bad faith argument which it is. Whether that debunking be accomplished through the kind of "mirroring" technique suggested by Balkin or by the more stolid efforts promoted by Strauss to expose its doctrinal weaknesses and moral deficits is important only insofar as something happens to destroy its current apparent respectability.

As to the "original meanings," more than one person entertained thoughts about the relevant phrases in the consitutional texts, myriads of thoughts, within seconds of their first enunciation, including thoughts about the intentionally ambiguous provisions. All of these meanings are with us still and all are more or less relevant to what we do in forging the next round of propositions. Our next round will only be added to the many antecedent propositions - nobaody can annul even one of them.

We average persons probably understand enough about the general features of human life (being humans ourselves) to give a pretty good account of how people understood what was meant by the squiggles on the piece of paper, including the artful evasions that were part of the effort.

But for all that, we are different from them in the way that makes all the difference: we have had experiences that none of the originals could have had and that means that even if we do understand what they meant, our understanding is being done with intellects that have, among other things, made a phone call, read Brown v. Board of Education, and flown to San Francisco from O'Hare. Our brains are different from the originals' and so are those of the bearers of the "new" rights.

I appreciate Balkin's and Strauss'lawyerly efforts to take on this bunk. I also think it is serious, but not because of its doctrinal power, but because by reason of its narrowness, it will be unable to provide legal propositions of sufficient adequacy to satisfy the purposes for which we have a constitution and a process for interpreting it for our actual contemporary and hoped-for future life as a nation.

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