Originalism

Anyone who reads here, knows I’m not a big fan of originalism as a method of constitutional interpretation. The obvious reason being that our 2006 world is far different than the world existing, and indeed anticipated, by the original framers.

When the 4th amendment was adopted, telephones were still in development, and the email would have been seen as witchcraft. How are we to rely on the original intent/text when applying protections to such things?

Anyway, over at Volokh, there’s been an admittedly interesting debate on the whole issue, essentially around the 4th amendment, but touching on the evolution of originalism.

I was aware of the originalism schism between intenters and textualists. Admittedly, I was unaware that there is a more moderate (as I define it) branch of originalism, which I call living constitution in all but name.

I can find no real difference between the two approaches. Perhaps, Original meaning requires that a tie goes to the original intent. I’m not sure. Both theories seem to acknowledge that trying to apply the strict understanding of the framers to our twenty-first world is an exercise in futility. Both seem to recognize that our constitutional understanding needs to evolve over time.

My argument against originalism, is that it’s merely selective interpretation. For example, here’s a discussion on the Original intent on the fourth amendment, inspired no doubt b y the recent decision involving the NSA wiretap program. Notice that it focuses, back and fourth on the intent of the warrant requirement. It’s lots of sound and fury, signifying nothing.

The fact is that in adopting the 4th amendment, the founders were concerned about exactly what Bush is doing. General warrants were an investigative tool used by Briton, to search of evidence of a crime with no evidence a crime was committed. It was commonly used, at that time, against political enemies. The 4th amendment was designed to prevent these ‘fishing expeditions’. Which, it appears to me, is exactly what the NSA program does – it listens to the conversations of people where there is no evidence of wrongdoing, hoping to find evidence of wrongdoing.

For a good primer on the early view of the 4th , read Boyd v. US (1886). See if they interpreted the original intent of the founders, the same way as our modern ‘Intentists’.