« Eric Segall on Judicial Engagement and New Originalism
Michael Ramsey
| Main | Gregory Maggs: A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning
Michael Ramsey »

11/14/2017

A Comment from Fred Gedicks on Originalism
Michael Ramsey

Regarding this post, Fred Gedicks (BYU) sends this comment:

Thanks for noting my essay on Larry Solum's summation of originalism in your recent Originalism Blog post. I'm writing because you've misunderstood my ontological criticism for an epistemological one.
 
I gather that "object" in your point (1) is implicitly modified by "discoverable," which you eventually make explicit: "Originalism is happy to concede that some constitutional phrases may be . . . "inkblots" with no discoverable meaning . . . . "
 
Point (2) seems to proceed along the same lines, as does your conclusion that, more often than not, the meaning of past texts is recoverable as an object untouched by present concerns: "Originalism does not contend that meaning can always be recovered in its 'pristine' form; rather it contends that meaning can last least sometimes be recovered" (which I take to mean, "sometimes be recovered in its pristine objective form" and, again, often enough for originalism to function as a method of interpretation).
 
In other words, you take me to claim that originalists presuppose meaning necessarily exists in the past as a discoverable object, and you respond that originalists are happy to concede that epstemic obstacles often prevent the recovery of that object, though not often enough to undermine originalism's functionality as an interpretive method.
 
This is not my claim at all. I am not making (the admittedly tired) argument that originalism is epistemologically impossible (or impossible often enough that it is not worth pursuing as an interpretive methodology). I argue that originalism cannot ever be recovered in its pristine form, untouched by the present, because no original meaning exists at all, discoverable or not, that is not touched by the concerns of the interpreter and her life and times. The meaning of the past is partially constituted by the present, and the present partially constituted by the past. 
 
Constitutional interpretation is an example of this hermeneutic circle. There is no meaning of the Constitution independently existing in the past until we look for it; the effort creates a meaning, but one unavoidably marked by the present. The present, in turn, is marked by the past, by the tradition in which the Constitution is embedded and handed down to the present, which colors our view of the Constitution and unavoidable shapes our attempts to understand it. 
 
The essay illustrates this (apparently too obscurely) with both the sexism of IWL and the contemporary imperative that any interpretive theory account for Brown. In what sense could one argue that the sexism of IWL or its protofeminist moments have always existed as part of the meaning of the movie from the day it premiered? How could any reviewer in 1946 have "discovered" this sexism a generation before sexism and feminism were ideas that had names? In what sense did "separate but equal is inherently unequal" always exist as the meaning of the EPC, discoverable by any person in 1868 familiar with the context in which it was drafted and ratified, when hardly anyone in 1868 really believed in the social equality of the races which school desegretation (along with interracial marriage) would have challenged?
 
Perhaps I would have done better to use the concept of the "classical" to illustrate the ontological point. Despite the freedom with which we bestow "instant "classic, nothing is classic the moment it is created. Identifying a text as classic is a judgment of the present--or, at least, a time period considerably after the text is written. And yet, the consensus that a text is classic necessarily affects how we understand it in the present. A classical text means something different once it becomes classic, canonical, paradigmatic.
 
Brown, again, is an excellent example of this. The "original" meaning of Brown is unavoidably colored by its eventual widespread acceptance which, of course, did not come until many decades had passed from 1954. And any attempt to understand Brown is unavoidably affected by its paradigmatic status.
 
Professor Gedicks' essay, on which I commented briefly in my post, is It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery.