[reply to a post on conlawprof]
... you've have this all messed up.
Disputes about jurisprudence in the US are epistemological, not hegemonic. That's the whole point. American constitutional mythology wants the right answer, not the efficient or expedient thing to do. To understand this, one must enter the American mind. The American understanding of legality holds that the statute is quintessentially positivistic. Because of this, it need not have a "right reason" to it. We therefore entrust the power of statute to assemblies who distribute its prerogatives via the democratic ritual. You win election, you write laws.
The constitution, however, has always been thought of as the "law of the laws." It isn't just another bureau or department playing the policy game. So the tradition in American legal thought is that the statute represents "policy," while the constitution represents a kind of righteousness (correct answer). (If you don't like this grammar, think of one as being "meta policy," the other as ordinary policy).
The central dispute in the American context has been what calculus judges should use to pronounce the righteousness (correctness). Early forms of the craft have been self contained, while later versions now incorporate looking at the world (sociological jurisprudence, for example). The critical schools of the 60's generation were the first to say that American constitutionalism had nothing to do with epistemology and that one couldn't be epistemological (justificatory) anyway. I think the people who won the day on this were Dworkinians, who suggested that law could be both justificatory and good consequentially. (One could find best answers that also had good results).
But the point is that "originalism" is an ongoing EPISTEMOLOGICAL dispute. Jurisprudence is about the epistemology of law. I don't think Europeans really understand that, because so many live within societies that excess in parliamentary logic.
From: Miguel Schor
Sent: Saturday, November 8, 2008 10:01:42 AM
Subject: Why originalism?
Why does the United States fixate on originalism while polities around the globe largely (and happily) do not? What is so different about our Constitution that mandates this different result? The framers did not inscribe originalism into the Constitution. Democracies around the globe, moreover, have adopted, with a few exceptions, the American idea that rights should be entrenched in a written constitution (or a bill of rights) and interpreted by courts. Courts abroad take originalism into account but originalism does not trump all other forms of interpretation. I think the reason why originalism plays such an important role in the United States and a lesser role abroad is that originalism is a second best solution to the problem of judicial accountability. When polities abroad adopted judicial review and constitutionalized rights in the late 20th century, they also adopted stronger mechanisms of judicial accountability that obviate the need to
obsess over originalism. They adopted different institutional constraints because they sought to circumscribe the power of judicial review. When Marbury (the hope of constitutionalized rights) spread around the globe, it was joined with the fear of Lochner (the fear of courts run amok). Hamilton may have believed that constitution makers did not need to distrust judicial review as courts exercise neither force nor will but constitution makers in the late 20th century understood this to be a charming fairy tale. For anyone who might be interested, I make this argument in a paper entitled “Judicial Review and American Constitutional Exceptionalism,” http://ssrn.com/abstract=1081385.
The question I have for the list, therefore, is why originalism? It exacts huge costs since it precludes courts from taking the public policy implications of their decisions into account (pace Heller). Perhaps we need to borrow the limitation clause found in section 1 of Canada’s Charter of Rights and Freedoms which instructs courts that legislatures play a role in construing rights that courts should respect. What is so different about our constitution or constitutional order that mandates originalism über alles?
Miguel Schor Associate Professor of Law Suffolk University Law School 120 Tremont St. Boston, MA 02108 617-305-6244 SSRN Webpage http://ssrn.com/author=469730