Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Thursday, July 14, 2005

How Originalist is Originalism?

A thought occurred to me just now in the shower (a very fine place for thoughts): What were the views of the framers of the Reconstruction Amendments as to how their work should be interpreted going forward? Did they adopt an originalist view, that the meaning of the Amendments is fixed and that the views and practices of 1870s America should govern future controversies? Did they adopt a dynamic view, hoping that future generations would read the Amendments' (especially the Fourteenth's) broadly worded mandates in accordance with the views and practices of their own eras? Did they adopt a natural law view, that the Amendments had a fixed meaning, but that the meaning was tied, not to the views and practices of the 1870s, but to abstractions about justice and the right that their own era captured only imperfectly, and that future generations should through the use of reason try to grasp more perfectly the underlying principles? Something else?

It is, I think, an interesting question. If it turned out that the framers weren't originalists, would the originalist project collapse on itself? Or can micro-originalism be justified outside of macro-originalism? Has there ever been any comprehensive work done on this? I smell an S.A.W.!

UPDATE: Mr. Misanthropic responds (and gets added to the blogroll!) as does Will Baude via e-mail. It does seem like a fertile subject for an S.A.W., which I'll need in the fall (assuming, of course, that I finish my Substantial and there is a fall). So: I call dibs on this subject.