Thanks Prof Vermeule for great piece, as well author of previous essay Judge Matey.
I wonder, coming from a different cultural tradition that views and receives values distilled from real lives of real people and have endured the vicissitudes of history as a cumulative body of wisdom to learn from and build on rather than tired old wardrobe to be replaced. In the crossfires between originalism and positivism, one does discern, from the point of view of the tradition to which I refer, a deep mistrust and therefore absence, of *commitment* to specific principles and values that generate or is derived from what is or has been understood about human behavior.
Human behavior, the subject of law, is an offspring of Nature, not the other way around. The endeavor of Philosophy (and in point of fact also of Science in Aristotelian thought), is to decipher Nature. The endeavor of Law is to apply what has been deciphered, not innovate or otherwise contrive or concoct (without evidence from onward discoveries in Science). In everyday application, nowhere is this Nature and Law linkage more relevant than in laws governing abortion and enthanasia of the elderly and the infirm.
"By contrast, what we today call “originalism” was simply not a part of the understanding of the founding generation or many generations thereafter."
Serious question, I don't know the answer:
Did lawyers of the founding era interpret statutes or other written government enactments (Royal decrees? Charters?) in strict compliance with the actual text, or did they have another methodology?
Did lawyers of the founding era interpret contracts to give effect to the intent of the parties as reflected in the writing? That could be restated as: How far back does the parol evidence rule go? We interpret old contracts by their strict text nowadays, for example, and we only advert to material outside the text if there is ambiguity.
There was no equivalent to the US Constitution in the English Common Law, as we know. It was something new in the world.
So, what was the nearest equivalent interpretive methodology at the time of the founding?
Thanks Prof Vermeule for great piece, as well author of previous essay Judge Matey.
I wonder, coming from a different cultural tradition that views and receives values distilled from real lives of real people and have endured the vicissitudes of history as a cumulative body of wisdom to learn from and build on rather than tired old wardrobe to be replaced. In the crossfires between originalism and positivism, one does discern, from the point of view of the tradition to which I refer, a deep mistrust and therefore absence, of *commitment* to specific principles and values that generate or is derived from what is or has been understood about human behavior.
Human behavior, the subject of law, is an offspring of Nature, not the other way around. The endeavor of Philosophy (and in point of fact also of Science in Aristotelian thought), is to decipher Nature. The endeavor of Law is to apply what has been deciphered, not innovate or otherwise contrive or concoct (without evidence from onward discoveries in Science). In everyday application, nowhere is this Nature and Law linkage more relevant than in laws governing abortion and enthanasia of the elderly and the infirm.
What a great and insightful comment. especially the first sentence of your second paragraph. Thank you!
Thank you for liking the first sentence. It took some courage to write it!
"By contrast, what we today call “originalism” was simply not a part of the understanding of the founding generation or many generations thereafter."
Serious question, I don't know the answer:
Did lawyers of the founding era interpret statutes or other written government enactments (Royal decrees? Charters?) in strict compliance with the actual text, or did they have another methodology?
Did lawyers of the founding era interpret contracts to give effect to the intent of the parties as reflected in the writing? That could be restated as: How far back does the parol evidence rule go? We interpret old contracts by their strict text nowadays, for example, and we only advert to material outside the text if there is ambiguity.
There was no equivalent to the US Constitution in the English Common Law, as we know. It was something new in the world.
So, what was the nearest equivalent interpretive methodology at the time of the founding?
Please see Judge Matey’s piece elsewhere on the site - he explains this in detail.