Wednesday, October 10, 2018

A Note On Originalism And Changing Condtions AKA New Facts

....nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws... 1/6

Brown Headnote: 

........The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. Pp. 492-493.(c)...2/6

On it, this extract from the head note of Brown may not be wrong. 

And here may lie a fundamental problem with originalism. Its argument would be that contemporaneous communicative content of the language of the 14th Am is different from the “conditions existing” at the time of its adoption. 3/6

But if the “conditions existing” exhaust the applications of that language, then don’t we have the conclusive range of the meaning of it, save for new conditions that are in principle necessarily “on-all-fours” comparable? 4/6

So then if separate but equal is more consistent with existing conditions than integrated equality, doesn’t originalism hit a road block—namely changing facts or in the language of Brown changing conditions? 5/6

The point is: how can then communicative comment of legal language be understood save by its contemporaneous application to fact situations, i.e. then “existing conditions?” 6/6

No comments:

Post a Comment