I'm sure you're all eager to hear my thoughts on Mitchell Berman's "Originalism Is Bunk" article. So here they are:
1. This is awesome. He gets everything right. Best. Originalism article. Ever.
2. Damn. Damn, damn, damn. So much for my writing the definitive refutation of conceptual originalism. Curse you, Mitchell Berman.
There's more to say, of course--Larry Solum has yet to concede defeat, so the fight must go on--but I really do think Berman has thoroughly refuted the extant "hard" originalist claims. To respond, originalists will need to articulate and defend an account of conceptual content sophisticated enough to deal with the fact the disagreement over the nature of constitutionalism and constitutional law extends all the way down when elaborated at any level of specificity. And this they have yet to do.
This, I think, has to be the next step. Perhaps pragmatic inferentialism will have a large part to play here; perhaps not. But, like Berman, I suspect "strong originalism" will lose its attractiveness as a interpretive theory.
Monday, January 07, 2008
Subscribe to:
Post Comments (Atom)
1 comment:
The disagreement does not actually go all the way down. Basically everybody who matters for purposes of constituting our constitutional commitments today agrees that the Constitution was framed in ratified in the late 18th-Century, that the people who did so were lawmakers and the fathers of our country, and that the document that we now treat as law was made authoritative around then.
So all one needs is a conceptual defense of originalism that derives from that premise. I happen to think that there is one.
Post a Comment