progressive alternative to "originalism"

[dano]

Came across this article on NPR recently:

http://www.npr.org/templates/story/story.php?storyId=105439966

... and thought I would try to think of an alternative, and also put it to
the Lakoff crowd for discussion.

First, has George offered his own thoughts on this? I can't recall or find
anything quickly.

Various ideas mentioned in this article:

- "living constitutionalism" (possibly leading contender?)
- "democratic constitutionalism"
- "redemptive constitutionalism"
- "constitutional fidelity"
- "progressive originalism"

Here's my initial reaction:

I don't like the last one: trying to make "originalism" a contested
concept, with a productive progressive interpretation. I think we should
simply find a way to make the term (and the philosophy it defines)
unattractive. I want to trash the term utterly.

The problem I have with originalism is the same as with any other form of
fundamentalism: basically it's a total fiction. Biblical fundamentalism is
merely one contemporary concoction of an interpretation of a selection of
many contradicting passages from the bible. Same thing with constitutional
originalism: the constitution has a variety of overarching principles, all
of which come into conflict "on the ground" when you try to apply them all
simultaneously to a specific case.

Heck, many constitutional historians would suggest that the framers
themselves couldn't define in great detail what they meant by the words
they agreed upon, as that agreement was to a significant extent a political
compromise in and of itself during the constitutional convention, and
compromises tend toward vagueness when specifics cannot be agreed upon.

So here's my idea for a name for the progressive approach to the constitution:

{ Constitutional Realism }

* Realism frames the opposing view as "unreal" or "fantasy" in some sense,
which in my mind is precisely what constitutional originalism is: it's a
bald, artificial fiction.

* Realism also has the connotation of "going out and taking a look at
reality" which has an empirical element to it. That is, a bottom-up driven
process of grounded understanding, rather than a top-down process of
artificially constructed proclamation.

Oh, and don't let anyone ever get away with characterizing originalism as
the opposite of judicial activism: self-proclaimed originalists are among
the most egregious judicial activists there are! If there is a contested
concept here, it is *judicial activism*.

Same as other fundamentalists: all are trying to force a particular
contemporary interpretation of some sacred historical text on us as if it
had the slightest preference to any other contemporary interpretation.
It's a lie. They're simply trying to claim "god's mantle" for their view
the way monarchs used to do several centuries ago.

Originalists and fundamentalists are today's would-be monarchs, playing on
a complete fiction to claim authority for their positions. We need a pithy
way to emphasize that fictional nature of their claims.

Anyone else have thoughts about this? Different ideas? Ramifications?

[Amy Meier]

I personally like "in the spirit of the law" or  "Constitutional intent" , "The Founders Intent". You are more likely to find supporting evidence in favor of the actual intent of the law than the letter of the law. The Biblical comparison jumped to mind immediately.

Am I a believer in the Bible? yes, there are many useful stories and lessons which one of the most oft repeated is that of love. There's also a lot of empathy for the poor and less fortunate.
Do I think that the Bible is the word of God? No, and I haven't heard even the most fundamentalist claim that God actually took a pen and scribed the works. So immediately in the literalist camp, you find defenders of the unreal such as dinosaur bones being planted as a hoax to disprove the earth's youth. Any literal interpretation of the Bible and its strict modern day adherence is subject to healthy skepticism. 

If you are trying to connect with the intention of the law, you can tap into values and not get bogged down in the literal trappings. In that way you are being just as original as the originalists.

Amy

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> Date: Wed, 24 Jun 2009 22:44:52 -0700
> To: rockridge-an...@googlegroups.com
> From: r...@munb.com
> Subject: [annex] progressive alternative to "originalism"