[EL] [Lawcourt-l] Stop Using The Term "Original Meaning"

Fri Aug 24 16:13:22 PDT 2018

Ok folks, I will weigh in with  this post.  This blog speaks to original
intent, whatever it means and whomsever espouses it.  Legal scholars could
profit from the insights of linguistics, philosophers,and historians.

Can a Sitting US President Be Indicted for a Crime?  Why the Framers Intent
is Irrelevant to Answering this Question
http://schultzstake.blogspot.com/2018/08/can-sitting-us-president-be-indicted.html

On Fri, Aug 24, 2018 at 6:00 PM, Eric J Segall <esegall at gsu.edu> wrote:

> Apparently 3 of the 5 most cited Originalists according to recent data are
> Amar, Balkin and Solum which led Jack to say three of the five are liberals
> (Jack represents Solum as a liberal) (I’m not saying that).
>
> So there’s that about liberal Originalism.
>
> e
>
> Sent from my iPhone
>
> On Aug 24, 2018, at 6:47 PM, Graber, Mark <MGraber at law.umaryland.edu>
> wrote:
>
> May I suggest a solution.  "Liberal originalism" strikes as the sort of
> term unlikely to have a particular inventor.  It just appears to grow
> naturally in the wilds.  Scott, however, strikes me as almost certainly the
> first person who used the term consistently, sought to provide the term
> with a fixed meaning and develop some conceptual apparatus.  That strikes
> me as a significant achievement and one that obviates the need to go
> through the entire corpus of western civilization in search of whether
> Plato, King Richard II, or Wilma Flintstone ever put those two words
> together.
> ------------------------------
> *From:* lawcourt-l-bounces at legal.umass.edu <lawcourt-l-bounces at legal.
> umass.edu> on behalf of Chris W Bonneau <cwbonneau at gmail.com>
> *Sent:* Friday, August 24, 2018 6:40:29 PM
> *To:* Scott Gerber
> *Cc:* Law and Courts List
> *Subject:* Re: [Lawcourt-l] Stop Using The Term "Original Meaning"
>
> You promised you weren’t going to say anything else “about this silly
> debate.”
>
> Chris W. Bonneau
> Department of Political Science
> University of Pittsburgh
> Pittsburgh, PA 15260
>
> Sent from my iPhone
>
> On Aug 24, 2018, at 6:36 PM, Scott Gerber <s-gerber at onu.edu> wrote:
>
> Sandy:
> I am on the street on my smartphone. I sent the link to the entire list
> long ago. In fact, you responded in that chain. Did you read what I linked?
> Did you read what Shapiro alluded to from Bradley and Fleming? Have you
> read the histories of originalism that discuss liberal originalism?
> Scott
>
>
> On Fri, Aug 24, 2018, 6:26 PM Levinson, Sanford V <
> SLevinson at law.utexas.edu> wrote:
>
> Forget about being civil to Mr. Shapiro. You have caught the rest of us up
> in this “silly debate.” So we want to know if there is concrete evidence of
> your prior use. If you are unwilling to send the evidence, which you assert
> is on a message you’ve already sent to Mr. Shapiro and is therefore readily
> available on your computer, the only rational inference is that the
> evidence does not exist.
>
> Sandy
>
> Sent from my iPhone
>
> On Aug 24, 2018, at 5:19 PM, Scott Gerber <s-gerber at onu.edu> wrote:
>
> *I already sent it.* What I said in my prior email stands. You surely know
> that books are often preceded by other work. Mine are.
>
> Moreover, Mr. Shapiro was extremely unaccomodating about the lost Corbin
> papers years ago and I have no interest in sending him something twice.
>
> I will say nothing more about this silly debate.
>
> Scott
>
> On Fri, Aug 24, 2018, 6:08 PM Chris W Bonneau <cwbonneau at gmail.com> wrote:
>
> If you have the reference, just send it. If you don’t, then concede.
>
> This is not hard.
>
> Chris W. Bonneau
> Department of Political Science
> University of Pittsburgh
> Pittsburgh, PA 15260
>
> Sent from my iPhone
>
> On Aug 24, 2018, at 6:04 PM, Scott Gerber <s-gerber at onu.edu> wrote:
>
> Search more than Westlaw, Mr. Shapiro. You also don't seem to understand
> the difference between a book review (Bradley) and other scholarship, or
> that 1989 is before 1990 and that many books, including my 1995 book that
> you mention, were the culmination of prior writings (1989) where ideas and
> concepts are initially presented. I made that point in the article to which
> I linked a while back. Read it. You are a reference librarian and you
> should be able to find it.
> But perhaps not, since you never found Arthur Corbin's lost papers. As you
> know, I pointed that out in an altogether different article entitled "An
> Ivy League Mystery: The Lost Papers of Arthur Linton Corbin." Corbin's son
> was not happy with Yale on that one.
>
> Scott
>
> On Fri, Aug 24, 2018, 5:44 PM Shapiro, Fred <fred.shapiro at yale.edu> wrote:
>
>
> Yes, it appears so.
>
>
> Fred Shapiro
>
>
>
>
> ------------------------------
> *From:* Leslie gGoldstein <lesl at udel.edu>
> *Sent:* Friday, August 24, 2018 2:06 PM
> *To:* Shapiro, Fred
> *Cc:* Scott Gerber; Law and Courts List
> *Subject:* Re: [Lawcourt-l] Stop Using The Term "Original Meaning"
>
> Thanks for the extra details. So it actually starts in 1990?
> Leslie
>
> Sent from my iPhone
>
> On Aug 24, 2018, at 7:52 AM, Shapiro, Fred <fred.shapiro at yale.edu> wrote:
>
> There is a difference between asserting that one coined a phrase and
> demonstrating the chapter and verse.  Many people do the former, not that
> many do the latter.  I don't see a link to an article in Professor Gerber's
> posting of August 19, at least in the posting that I saved.  I believe
> Professor Gerber used the phrase "liberal originalism" in a 1995 book, but
> Gerard V. Bradley used it in the University of Illinois Law Review in 1990
> and James E. Fleming used it in Constitutional Commentary in 1994.
>
>
> Fred Shapiro
>
>
>
> ------------------------------
> *From:* Scott Gerber <s-gerber at onu.edu>
> *Sent:* Friday, August 24, 2018 7:07 AM
> *To:* Shapiro, Fred
> *Cc:* Law and Courts List
> *Subject:* Re: [Lawcourt-l] Stop Using The Term "Original Meaning"
>
> I answered Fred S's question on Aug 19 and linked to an article.
> Sdf
>
> On Thu, Aug 23, 2018, 10:39 AM Shapiro, Fred <fred.shapiro at yale.edu>
> wrote:
>
> No one answered my query about when the term "liberal originalism" was
> first used, so I researched it myself.  It appears that it was first used
> by Gerard V. Bradley.
>
>
> Fred Shapiro
>
> Associate Director for Collections and Access
>
> Lillian Goldman Law Library
>
> Yale Law School
>
>
>
> ------------------------------
> *From:* lawcourt-l-bounces at legal.umass.edu <lawcourt-l-bounces at legal.
> umass.edu> on behalf of Shapiro, Fred <fred.shapiro at yale.edu>
> *Sent:* Sunday, August 19, 2018 7:50 PM
> *To:* Scott Gerber; Wilson, Sean
> *Cc:* Law and Courts List
> *Subject:* Re: [Lawcourt-l] Stop Using The Term "Original Meaning"
>
>
> When was the term "liberal originalism" first used?
>
>
> Fred Shapiro
>
>
> ------------------------------
> *From:* lawcourt-l-bounces at legal.umass.edu <lawcourt-l-bounces at legal.
> umass.edu> on behalf of Scott Gerber <s-gerber at onu.edu>
> *Sent:* Sunday, August 19, 2018 6:12 AM
> *To:* Wilson, Sean
> *Cc:* Law and Courts List
> *Subject:* Re: [Lawcourt-l] Stop Using The Term "Original Meaning"
>
> Sean:
> If you are going to criticize people for the terms they use you should at
> least identify accurately the originator of the term you are criticizing.
> As I've said before I coined the phrase liberal originalism. You seem to
> think Jack Balkin coined it.
> Scott
>
> On Sat, Aug 18, 2018, 9:36 PM Wilson, Sean <sean.wilson at wright.edu> wrote:
>
> ... i think that language matters, though.
>
> How many who use the term “original meaning” think that they are giving a
> factual read of something rather than a normative read? This is the central
> issue.
>
> Most law professors were bamboozled into thinking that originalists were
> giving factual accounts of meanings. To fight this, they did one of two
> things. They tried to offer their own pastology as a substitute (see
>  Balkin’s liberal originalism) or they tried to say that ethics mattered
> more than old facts.
>
> The law professors did this because they lacked sufficient training in
> philosophy of language. They actually still to this day think that someone
> who offers the original meaning of x is giving the historical factual real
> true semantics — the only option for which is liberal cheating. And this
> fake, false and unscholarly ... “fake news” ... is what has allowed all of
> this mischief to occur.
>
> And it is remedied so easily by speaking in way that recognizes that
> originalists are only giving a normative read in the first place. That’s
> what people are not getting. The reading being offered is a normative
> READING. And so we need a term that says what is going on. They are not
> offering the original meaning of x; they are offering a pastology of it.
> They are offering a pastological reading or exegesis.
>
> I really think this is simple and needed. Get used to it and start doing
> it. It’s not about me; it’s about the issue.
>
> Sent from my iPad
>
> On Aug 15, 2018, at 5:32 PM, Lief Carter (R) <lhcarter at coloradocollege.edu>
> wrote:
>
> Throwing my two cents into this pot. My main problem with terms like
> "originalism" (liberal or conservative) or "living constitutionalist" or
> whatever, is that they don't capture what is actually going on.  Whichever
> result-oriented way they point, they suggest phony vectors and misleading
> continua that are smoke screens, not accurate descriptions of judicial
> constitutional lawmaking. I'd much prefer (assuming such categories are
> useful at all outside the academy) descriptions that differentiate between,
> say "conscientious legal craftsmen" like Harlan II and Stevens, on one hand
> and "freewheeling ideologues", for which I would nominate Scalia, Douglas
> and Thomas for starters.  There is no there there in any form of
> originalism, which helps explain why we can have liberal and conservative
> versions of it.  Originalism, in other words, does not meaningfully
> constrain or even explain judicial behavior.  It does no good to call
> Scalia some kind of originalist when his output so frequently violates
> those tenets.  Scalia occasionally delights me when he puts on his legal
> craftsman hat--e.g., dissenting in MARYLAND v. KING--, and the opposite
> when he more frequently goes in the outright hypocritical/fraudulent
> direction, distorting/ignoring the factual record in cases--EDWARDS v.
> AGUILARD comes to mind--and so on.  If, as I think we should, we believe
> the rule of law with its impartial judiciary is a critical component of
> good government, it's good legal craftsmanship vs bad we should pay
> attention to, not to some eggheady academic categories.  And if there is no
> such thing as good vs. bad legal craftsmanship, then just what is it that
> law schools teach over three years??
>
> PL
>
>
> ------------------------------
> *From:* lawcourt-l-bounces at legal.umass.edu <lawcourt-l-bounces at legal.
> umass.edu> on behalf of Leslie gGoldstein <lesl at udel.edu>
> *Sent:* Wednesday, August 15, 2018 5:00 PM
> *To:* Wilson, Sean
> *Cc:* LAWCOURTS
> *Subject:* Re: [Lawcourt-l] Stop Using The Term "Original Meaning"
>
> CAUTION: This email originated from outside Colorado College. As always,
> please be careful when opening links or attachments in any email.
>
> Who else is in the movement?
>
> Sent from my iPhone
>
> On Aug 15, 2018, at 3:19 PM, Wilson, Sean <sean.wilson at wright.edu> wrote:
>
> ... I wanted to pass along a scholarly movement that I am starting. I
> would like all scholars who do work in legal theory to stop using the term
> "original meaning." This is why:
>
>
> https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232204
> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fpapers.cfm%3Fabstract_id%3D3232204&data=02%7C01%7Cesegall%40gsu.edu%7C09697c043e66451ea3cd08d60a139127%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636707476496306979&sdata=BoAY9Kn4b2FtVHyXtewiJcARvpMAg8NQ0xS17JMo6wY%3D&reserved=0>
>
>
>
> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fpapers.cfm%3Fabstract_id%3D3232204&data=02%7C01%7Cesegall%40gsu.edu%7C09697c043e66451ea3cd08d60a139127%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636707476496316984&sdata=h7UrwWoHfZ5vM%2BAYIUlzCJtrNJXWC%2BrKMLV6umzlFp8%3D&reserved=0>This
> is not a scholarly term. And I am specifically calling out the scholars who
> are supposedly opposed to originalism, yet who still speak this way. This
> language game is contrived, and you need to stop it. It is misleading
> everyone, not just your audience.
>
>
> So please consider spreading this word. Let's get a better language game
> going.
>
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-- 
David Schultz, Professor
Hamline University
Department of Political Science
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My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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