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Balkinization: Bad Originalism

todayJune 25, 2023

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I repeat, the issue is not about whether appeals to original understanding are legitimate or illegitimate. It is about whether originalism is the only touchstone of legitimate constitutional interpretation. I do not think that Brown can be justified solely on originalist grounds. However, that does not undermine the use of original understanding as a method of ascertaining constitutional meaning. What it does undermine is the view that judicial decisions are legitimate only if they can be squared with original understanding, and that decisions that appeal to text, post-enactment history, structure, prudential considerations, precedents (both judicial and non-judicial), traditions, and national ethos are illegitimate if they are unsupported by original understandings.

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Indeed, they expected that it did have such authority, and they expected those schools to be segregated, as in fact they were. McConnell’s ultra vires argument is pretty unpersuasive given the actual history of segregation in the District of Columbia; it is his way of reconciling his sincere originalist views with the unpalatability of their consequences. But the very fact that Congress appropriated money to segregated schools that already existed following ratification of the Fourteenth Amendment doesn’t really suggest that such schools were constitutionally suspect. In fact, it suggests the opposite, that such schools were constitutionally legitimate.

  • But the ratifiers’ failure to believe that their language had a particular extension, or even their affirmative contrary belief, is not dispositive for originalists who support Brown.
  • But the very fact that Congress appropriated money to segregated schools that already existed following ratification of the Fourteenth Amendment doesn’t really suggest that such schools were constitutionally suspect.
  • Turning to Brown, there may be good reason to think that the ratifiers of the Fourteenth Amendment did not think it banned segregation, or even thought it did not ban segregation.
  • However, it is the original meaning/sense/intension/connotation of the text that explains which factual mistakes are relevant and which are not.
  • That makes sense from the standpoint of our own values, in a post-Brown world, but not necessarily from theirs.

The great irony is that Whelan thinks that this language from Plessy is “living constitutionalism” because he appears to be unfamiliar with the history. He simply assumes that the Fourteenth Amendment must have been about colorblindness and that the Plessy Court must have been engaged in nonoriginalist judicial activism because he uses the doctrinal categories and the political debates of our own day to understand Plessy. This is a perfect example of what I regard as bad originalism– anachronistic special pleading that is insensitive to the complications of history.


The only issue that divides them is whether an issue of civil or social equality is being raised. In 1883, in Pace v. Alabama, which considered an Alabama statute that punished interracial cohabitation more stringently than cohabitation between members of the same race, the court unanimously upheld the law. Harlan did not dissent because this was a question of social equality, and where social equality is concerned separate but equal was perfectly constitutional. I believe that originalist argument is an important modality of constitutional interpretation. My disagreement with today’s originalists is that it is not the only or even the most important modality.

We should distinguish between the constitutional language’s originally-understood meaning (Fregean sense/Millian connotation/Carnapian intension), on the one hand, and its originally-understood application (Fregean reference/Millian denotation/Carnapian extension), on the other. He doesn’t appear to understand the historical distinctions that animated the Fourteenth Amendment. If he was really serious about originalism, he would support the tripartite distinction between civil, political and social equality, and demand that the Court reinstate it in its jurisprudence.

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The extension/application/reference/denotation of constitutional language represents tangible outcomes, while its intension/meaning/sense/connotation is a function from possible worlds to extensions. As a result, we need to know both an expression’s intension/meaning/sense/connotation and the facts about the state of the world in order to know the expression’s extension/application/reference/denotation. Speaking of compromises, Tren Desain Rumah Pertanian (just click the next site) the extraordinary circumstances the 14th passed under is another interesting historical vantage to look at this – would the Northern authors really consider the 14th to include mixed-race schools? In the years following its passage, Congress tolerated some truly vile laws in the South that facailly undercut any definition of social equality and didn’t get around to using its sec. 5 powers until much later.

● If proper identification is not available at the time of delivery, your delivery will be refused and you will be charged a delivery attempt fee of $5.95. Preorder products will be moved to next available Preorder delivery dates. Legislation is a compromise and so unless you have each senator/rep on record declaring what they actually ‘meant’, you’re playing a guessing game . That said, I think it’s possible to discern that certain intentions are beyond the realm of possibility, based on the same historical analysis Professer Balkin provides here.

Written by: jackbrownlow363

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