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Friday, September 28, 2012

Drakeman on Original Meaning, Original Intent, and Religious Liberty

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?  

http://mirrorofjustice.blogs.com/mirrorofjustice/2012/09/drakeman-on-original-meaning-original-intent-and-religious-liberty.html

DeGirolami, Marc | Permalink

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Mark,

There's some defense of it across the pond, at least in the statutory interpretation context. Oxford's Richard Ekins, for example, has a new book coming out from OUP on the topic ("The Nature of Legislative Intent"). He has some interesting responses to Waldron/Dworkin/Scalia's skepticism of collective intent. (Now who would have expected those three to be lumped together?)

Posted by: Jeff Pojanowski | Sep 28, 2012 8:49:41 PM

Jeff, thanks very much, I will look for the book. On the question of collective intent, a neat thing is that that question comes up in criminal law in the context of conspiratorial liability. Similar kinds of questions of divining group intent and the legitimacy of ascribing a single intent to a group arise. Sometimes I wonder whether there has been a paper studying the issue across the two disciplines (probably there has been).

Posted by: Marc DeGirolami | Sep 29, 2012 7:10:35 AM

Mark,

There's definitely some interesting overlap there, especially since part of the intentionalist's response to the many minds problem of collective intent is to identify a higher-order intent/commitment to the intended decisions of sub-parts of the body (drafters, committee members, etc.) even when you do not subjectively know the subjective intent of that other constituent part. You see the same thing in conspiracy (intentionalist's may even draw that analogy). Ekins' short article "Legislative Intent Law's Empire" in Ratio Juris lays the groundwork for such an argument and is much shorter than a book.

Posted by: Jeff Pojanowski | Sep 29, 2012 11:00:50 PM