Sunday, March 26, 2017

An Originalism Doughnut Hole?



a brief exchange between my friend and me pointing to what seems a big conceptual problem with it:

My friend:

....One point is that the Public knew more by 1954 about the difference between separate black and white schools than was known by the Plessy court. 

Leaving aside whether Brown is or isn't justified on originalist theory, what about when facts evolve?

If in 1789 the public didn't think solitary confinement was cruel and unusual punishment but psychological studies now show a much more profound effect on a prisoner than was known in 1789 can a court today call it cruel and unusual?  In one sense they would not be applying the public meaning the words had in 1789. In another sense maybe they are as they are taking the meaning of cruel and unusual as words, and giving them meaning based on better understood facts. 


...You raise a good point. 

I think the idea of evolving facts raises a question that doesn't trouble originalists because they seem to say that original public meaning isn't tied to specific applications. They draw a big distinction between meaning on one hand and implementation and application on the other. 

I'm on reflection not so convinced by this distinction and it leaves me with a big question. Which is to say, if you take away the original applications of the original use of the terms what are you left with? Aren't you left with a verbal husk so hollowed out and general, "cruel and unusual," for example, that it can be used to apply to new forms of "cruel and unusual?" 

So that if we detach originally application from original meaning, aren't we in effect in the realm of the "living," so to say, who argue some of the original terms are broad by design and are meant to "adapt themselves" to changing conditions? So it seems the more specific is the language in issue, the greater is the force of of an originalist approach but the more general the language the more elusive is its theoretical promise. This distinction makes sense to me. 

So for example, getting back to Brown, what does "equal protection of the laws"  mean in its original public meaning unless understood by its use in application?

After all, an argument for the originalist reading of Brown is to show how right after the passage of the 14th Amendment there was a big political effort to pass transport law using the Amendment's words to guarantee equal integrated access to all to train travel. Isn't that original public understanding by original use in application? If not, then, again, what's to distinguish an originalist from a living theorist if only the abstract idea is to be considered?

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