Friday, September 28, 2012
I wanted to point readers to this post by Donald Drakeman about original meaning and original intent. Don raises a number of points that I've been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism. First, are there still advocates (besides Don) of the utility of original intent originalism floating about? I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists. I should also note that Don, from my reading of his work, is not exclusivist about original intent. He simply thinks it might be useful evidence to consider. Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don's example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)? There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn't Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?