Tuesday, February 5, 2019

A Lay Note, Poor Thing That It Is, On Semantic Originalism

A note to two guys:

I’ve been (what I laughingly call) thinking about why on an originalist account courts early on in principle couldn’t have held that capital punishment is “cruel and unusual.” 

To discover original public meaning, the explorers look at all kinds of contemporaneous utterances, written and oral, as well as considering the state of things in the common law. (As I understand it, unusual then meant an atypical practice.) If in that investigation, there was, as seems to be so, no consensus, no critical mass of agreement, nor any convergence of opinion that capital punishment was cruel—it certainly was typical—as criminal punishment went, then how could a court in those times have concluded it was cruel? 

Also there are US constitutional provisions that speak of and recognize capital crime: 

...No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation...

And from section 1 of the 14th Amendment:

...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...

The question as to whether a court can now on an originalist account so hold that capital punishment is cruel and unusual is a different one that has a proposed answer in a province of originalist theory called semantic originalism. I’m not so very knowledgeable about it but as I superficially have it, it seems to boil down to the difference between detonative and connotative meaning: which is to say, there is a core of fixed meaning, detonative meaning, and then a range of possible meanings coming from among other things open ended language and changes in general understandings over time: 

...No originalist disputes that the Constitution is sometimes, like a novel, hard to interpret, and that readers might have different understandings of the text; readers at the time of the Founding did, too. Some words create ambiguity, intentionally or unintentionally. But each word still has an objective public meaning; conventional usage still limits our interpretation; and some interpretations are better than others.

Yet, a commitment to originalism doesn’t rule out the possibility of adaptation to future circumstances. Perhaps the ratifiers of the Fourteenth Amendment did not believe that the Constitution required desegregating schools, for instance, but it doesn’t follow that Brown v. Board of Education was wrongly decided. If originalists believed that only the original, expected applications of the Constitution are valid, then the First Amendment wouldn’t apply to speech on the Internet, and the Fourth Amendment’s guarantee against unreasonable searches and seizures wouldn’t apply to GPS devices. Most of the Constitution’s provisions define standards or principles—unreasonable searches and seizures, equal protection, due process—with meanings that can apply to new situations....

From https://www.city-journal.org/html/case-originalism-14300.html

One other thing, on Ontario’s Interpretation Act, Section 4:

....4. The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning. R.S.O. 1990, c. I.11, s. 4....

Apparently the phrase “as always speaking” has a lengthy progeny. 

I think it can be read with reference to that detonation connotation distinction and remain consistent with semantic originalism:

....Yet Aubrey makes clear that in Australia statutes are now presumed to be ‘always speaking’. That position is endorsed by our leading statutory interpretation treatise as well, an authority which the joint judgment cited in support of its characterisation of the ‘always speaking’ approach (at n 51). As to what it entails, that can take a number of forms depending on the relevant factual and statutory context. For example, the orthodox distinction between the connotation and denotation of statutory words permits the scope of a statute to extend to new phenomena whilst its original meaning remains fixed...

From this https://blogs.unimelb.edu.au/opinionsonhigh/2017/07/04/meagher-aubrey/

Maybe we can talk about this sometime. 

I’ll just note that the more I read about originalism’s theoretical means of dealing with new issues I start to get dizzy in separating it from living tree interpretation save for what seems an unobjectionable and crashingly obvious and trite truism that in interpretation, construction and application courts shouldn’t override legislation and substitute their views for what the law provides.  

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