Thank you for a fine article. I found it very clear in its rightful criticism of Originalism.
It seems that you have two different understandings of the Constitution:
(1) a natural law/common good understanding:
The framers’ understanding of equity drew on centuries-old natural law conceptions of equity traced from Greek to English law. For example, Justice Story linked equity’s corrective function to Aristotle’s definition of equity as “the correction of the law wherein it is defective by reason of its universality.
(2) A liberal democratic understanding:
For older liberal democratic framework constitutions like the U.S. constitution, originalism results in rights retrenchment because such constitutions set forth few rights and focus instead on establishing a governance framework.
How do you see the relationship between these two traditions ?
Anglo Equity is primarily associated with Chancery practice i.e., Trust and the prevention of Fraud the latter is different under Equity than under the Common Law; and Trust separated Equity from the ecclesiastical courts rather than separating Chancery from the Common Bench i.e., Equity follows the law i.a., matter regarding Specific Legacies and Specific Devises were recognized under the Common Law going back to Plowden and Coke. Lord Mansfield and others at Kings Bench recognized the same And likewise when the ecclesiastical courts dealt with matters of a concurrent nature Common Bench would enforce their use of the Common Law rather and issue Prohibition if it was transcended : but had no Power to do likewise with Trust. So one of the major problems in the USA is Federal Courts declining jurisdiction of Trust matters to the States in conjunction with Inheritance : Ed White CJ had a lot to do with that; and this resulted in a 'use it or lose it' situation which is where the major problems arise and generally it's attributable to an accepted ignorance that evolved from lack of practice. Under the Supreme Law of the Land this cannot Legitimately be the case regarding Property and even the Liberty of Property. Unfortunately, there remains the Confederate States of America epistemology all matters of Inheritance must be relegated to The States !! to the point where state judges are no longer bound to the Supreme Law of the Land ? Sophistry interjected pretence to defend ignorance as Comity between the federal government and The States. So you can see this is a keen point of interest to and for the Confederates, which nowadays is accepted by the SPM as "legitimate", "Conservatism" rather than Rebellion; and that "Conservatism" is primarily concerned with narrowing the scope of the14th A. US Const. into disuse facilitated by Congressional terror of using it (O dear we could lose re-election) or willful and knowing intent to not use it to intentionally lose it, while the "Conservatives" at Court destroy it altogether. In contrast, for a time anyway all of these Principles continued to evolve in England and Wales and matters regarding Traditional Trusts and certain aspects of Wills are essentially settled in regard to Inheritance but similar problems can be seen as a result of Commercial Legislation applying Equitable Principles to Fiduciary Relations at the Corporate level. and things can get confused and confounded. I notice careless phrases sometimes appear in cases that could lead to becoming accepted as bad law and one of the things Lord Eldon always stressed that such things must me watched (I can't recall his exact words) to a degree almost invincible degree, or else courts could be lending its hand to Fraud.
Well written. Although, one of the cases you referenced, "Vidal v. U.S. Patent and Trademark Office", indirectly touches on an area of law that may be in need of a healthy dose of originalism, and that area is relative most all areas of public policy and related "equity, of immense importance. Applying originalism to US patent law could challenge many of the current patent law regime's pernicious and societally, scientifically, and economically harmful aspects; such as those introduced by the Bayh-Dole Act. Historically, patents were intended to promote innovation by granting temporary and limited rights over specific inventions, with the understanding that such inventions would eventually enter the public domain. However, modern patent law, especially through the structures created by Bayh-Dole, has allowed private entities and their partners in the universities to monopolize publicly funded research, which likely contradicts both the framers' intent and the public's original understanding of patent law. Originalism could argue for rolling back overbroad patents (such as those covering software or genes), shortening patent durations, and increasing public access to innovations created through public funding or government technology transfers. This could restore the balance between promoting innovation while making it so that patents do not create long-term monopolies, and it could also increase the amount of scientific research and development while assisting in the creation of more firms in a more dynamic market place.
Thank you for a fine article. I found it very clear in its rightful criticism of Originalism.
It seems that you have two different understandings of the Constitution:
(1) a natural law/common good understanding:
The framers’ understanding of equity drew on centuries-old natural law conceptions of equity traced from Greek to English law. For example, Justice Story linked equity’s corrective function to Aristotle’s definition of equity as “the correction of the law wherein it is defective by reason of its universality.
(2) A liberal democratic understanding:
For older liberal democratic framework constitutions like the U.S. constitution, originalism results in rights retrenchment because such constitutions set forth few rights and focus instead on establishing a governance framework.
How do you see the relationship between these two traditions ?
Thank you.
Anglo Equity is primarily associated with Chancery practice i.e., Trust and the prevention of Fraud the latter is different under Equity than under the Common Law; and Trust separated Equity from the ecclesiastical courts rather than separating Chancery from the Common Bench i.e., Equity follows the law i.a., matter regarding Specific Legacies and Specific Devises were recognized under the Common Law going back to Plowden and Coke. Lord Mansfield and others at Kings Bench recognized the same And likewise when the ecclesiastical courts dealt with matters of a concurrent nature Common Bench would enforce their use of the Common Law rather and issue Prohibition if it was transcended : but had no Power to do likewise with Trust. So one of the major problems in the USA is Federal Courts declining jurisdiction of Trust matters to the States in conjunction with Inheritance : Ed White CJ had a lot to do with that; and this resulted in a 'use it or lose it' situation which is where the major problems arise and generally it's attributable to an accepted ignorance that evolved from lack of practice. Under the Supreme Law of the Land this cannot Legitimately be the case regarding Property and even the Liberty of Property. Unfortunately, there remains the Confederate States of America epistemology all matters of Inheritance must be relegated to The States !! to the point where state judges are no longer bound to the Supreme Law of the Land ? Sophistry interjected pretence to defend ignorance as Comity between the federal government and The States. So you can see this is a keen point of interest to and for the Confederates, which nowadays is accepted by the SPM as "legitimate", "Conservatism" rather than Rebellion; and that "Conservatism" is primarily concerned with narrowing the scope of the14th A. US Const. into disuse facilitated by Congressional terror of using it (O dear we could lose re-election) or willful and knowing intent to not use it to intentionally lose it, while the "Conservatives" at Court destroy it altogether. In contrast, for a time anyway all of these Principles continued to evolve in England and Wales and matters regarding Traditional Trusts and certain aspects of Wills are essentially settled in regard to Inheritance but similar problems can be seen as a result of Commercial Legislation applying Equitable Principles to Fiduciary Relations at the Corporate level. and things can get confused and confounded. I notice careless phrases sometimes appear in cases that could lead to becoming accepted as bad law and one of the things Lord Eldon always stressed that such things must me watched (I can't recall his exact words) to a degree almost invincible degree, or else courts could be lending its hand to Fraud.
Well written. Although, one of the cases you referenced, "Vidal v. U.S. Patent and Trademark Office", indirectly touches on an area of law that may be in need of a healthy dose of originalism, and that area is relative most all areas of public policy and related "equity, of immense importance. Applying originalism to US patent law could challenge many of the current patent law regime's pernicious and societally, scientifically, and economically harmful aspects; such as those introduced by the Bayh-Dole Act. Historically, patents were intended to promote innovation by granting temporary and limited rights over specific inventions, with the understanding that such inventions would eventually enter the public domain. However, modern patent law, especially through the structures created by Bayh-Dole, has allowed private entities and their partners in the universities to monopolize publicly funded research, which likely contradicts both the framers' intent and the public's original understanding of patent law. Originalism could argue for rolling back overbroad patents (such as those covering software or genes), shortening patent durations, and increasing public access to innovations created through public funding or government technology transfers. This could restore the balance between promoting innovation while making it so that patents do not create long-term monopolies, and it could also increase the amount of scientific research and development while assisting in the creation of more firms in a more dynamic market place.