Similarly, if originalism means history is important, no one, including William O. Douglas, ever denied that either. But if it means that we should use a hypothetical time machine to figure out what Madison would think of Internet porn, then even Scalia doesn’t defend it.

Constitutional norms (at least the interesting ones) are pitched at a rather high level of abstraction and generality. Of course, Sebastian may think the application of these norms is obvious, but that just means that he thinks his own opinions are obviously true, a condition he shares with a majority of people on the Internet.

I don’t have a comparably fun quote on “textualism” but it’s clear that most professors of constitutional law at major schools are advocates of the “living constitution” in one way or another. And yes, the scholarly consensus in a field, while not the final word, certainly says something about the current intellectual state of play. A fringe doctrine, and moreover one well-equipped to serve as a veneer of objectivity over subjective, conservative political preferences, is rightly an object of, if not suspicion, at least enhanced scrutiny. See Henry’s update for very suggestive empirical evidcence on how conservative jurists really behave in practice.

abb1, if we understand the constitution as a political document, reflecting political compromises, why is that an argument for un-doing the compromises reflected in the document? Presumably “public benefit” could have been agreed upon, as a political matter; so why not enforce the deal that was reached (“public use”)?

As a matter of fact, many commercial contracts do contain broad terms, such as “reasonable” and “good faith”. Those are ordinary, everyday agreements in commercial law.

It does violate the spirit of the law—”public use” involves use by the public. “Public benefit” is almost anything. The transformation from use to benefit nullifys the limitation.

I have no doubt whatsoever that most of those who wrote the text and those who voted for it perfectly realized that the text will be interpreted in a political context; otherwise they would’ve made sure it’s regarded as the Law of God.

The text gives a broad outline, establishes main principles; it’s full of terms like ‘reasonable’, ‘unsusal’, ‘excessive’ – the terms you probably never find in a commercial contract; the terms that clearly call for re-interpretation based on modern realities. Why is the ‘public use’ vs. ‘public benefit’ is not one of those as well? It certainly doesn’t violate the spirit of the law, does it?

That is how the law has worked all this time. That is perfectly within both textual analysis and any other analysis you are likely to have heard of or cited. At this point all you have revealed is ignorance, and you are apparently too tired to try to learn.

And it is textualism, not originalism. It is (dare I use an analogy) like the difference between LaMark and Darwin on evolution. The fact that you can’t be bothered to figure it out shows how much this conversation was about your posturing.

The most distinguished law schools are full of people much brighter than I who would be even less polite about originalism, so that ID analogy is one you might want to be a bit careful about.

Killing someone with a laser is still murder even though the drafters of many murder statutes had certainly never heard of a laser.

This discussion has been like talking about intelligent design with a fundamentalist Christian. Learn high school biology before going off on people and avoid calling a theory you apparently have zero understanding of “bankrupt”.

Competing approaches are not my concern here (I’ve already disclaimed any great knowledge of Constitutional law). The question I’m discussing is whether the claims of originalism to be anything more than rhetorical window-dressing can really be backed up in practice. I’m far from convinced by what’s been said so far. If originalism is bankrupt, citing the deficiencies of other approaches can’t help it.

There’s nothing new about applying the constitution to techniques and situations that could not have arisen in 1789. Even then, it was common knowledge that change (largely technological, though also philosophical) was occurring rapidly and that the law must deal with it. English Common Law didn’t have to change significantly to accomodate the steam engine or the proliferation of canals, the traditional principles were readily adapted.

In the same way the Constitution didn’t require dramatic change or new reading to apply it to new situations. It was drafted before there were railroads in the US, but it handled them just fine. Rights-of-way and eminent domain were the main constitutional issues, as I recall, but were not difficult to resolve with the original text and meaning.

The fact that the ACLU’s attorneys challenge an analogy doesn’t make it inapt, or unconvincing. It’s not hard to figure out how the Fourth Amendment applies to the situation you described; originalism deals with it handily. “Reasonable” is not hard to parse in this context.

Moreover, you ignore the problems created by approaches that are not closely tied to the text. For example, “public use” does not mean “public purpose” or “public benefit”—if the text were supposed to say that, it would. Yet in Kelo (and arguably in some predecessor cases), the Court wrote “use” out and replaced it with, well, whatever word was useful to reach the Court’s desired result. Is this your superior approach?

Shelby, you’re asking the wrong person; I run a forensic DNA lab and I certainly have no doubt that taking DNA samples from prisoners is not a violation of their rights. I have no problem in principle even with arrestees, though I have doubts that’s worth doing on cost-benefit grounds. My point in using this as an example is that, however the Constitutional question is decided, any “originalist” argument involved in the decision has to smuggle in 21st century ideas and preferences under the cover of the rhetoric about confining oneself to 18th century categories. The rhetoric writes a check that can’t be cashed in practice.

On what grounds do you distinguish taking a DNA sample from taking a set of fingerprints (also an unknown technique in 1789) from a convicted prisoner? Do you contend the latter is unconstitutional?

You put way too much work into “have had no conception”. They would understand the keeping of individual biological information like eye color, tattoo markings, hair color, scarring, height or other distinguising characteristics—some of which would not have been immediately available without close inspection. The fact that there are other physically distinguishing characterisitcs available that 18th century writers were unaware of does not change the fact that keeping record of individualized physical information would have been perfectly fine.

As for the rest, I’m unsurprised to hear that you don’t want to talk about the fact that there don’t seem to be any restrictions on your preferred method of interpretation. I knew you weren’t going to engage in conversation. You prefer to ask, not answer.

“You’re the one making the, to me, inherently incredible claim that an 18th-century document, read in exclusively 18th-century terms, can be applied directly to 21st-century realities undreamt of back then.”

No. I am using the method of contractual and Constitutional interpretation that was in regular use for 150 years and is still used in contracts. You may not like it, but yours is clearly the change.