I read your blog about the originalism panel at APSA. Too bad there were no representatives of the "speaker’s intended meaning" version of originalism–though it is, to be sure, a position held by only a small number of folks. Stanley Fish, one proponent, in a review of Barak’s book forthcoming in the Cardozo LR, lists the membership as him, me, Steve Smith, Paul Campos, Sai, Walter Benn Michaels, and Steven Knapp. Perhaps too many to fit in a phone booth, but not by much. But we’re neither "new" nor "old" originalists as those positions have been defined.Had I been there, the other point I would have made, is that, contra Balkin and a whole lot of other folks, one cannot posit a principle. One can posit a rule. And one can posit a standard–which is equivalent to prescribing "do the morally best you can within the boundaries set by posited rules." And one can refer to and incorporate a real moral principle–one the existence of which is not a matter of human creation. But one cannot create a principle–a norm with "weight." And if one cannot do that, then it follows that the framers (or ratifiers) didn’t do it. (Cannot implies did not.) So unless, say, Balkin’s "anti-caste principle" refers to a real moral principle, then it was not posited by the enactment of the equal protection clause.
The "one cannot posit a principle" thesis is going to be subject of a paper I’m giving at Oxford next year. If I’m right–and I’m pretty certain I am–this has major implications for constitutional interpretation.
Alexander Comments on the APSA “New Originalism” Panel
Larry Alexander (University of San Diego) writes concerning my post on the new originalism panel at APSA:
Alexander’s email reinforces my belief that the status of principles is the issue for Original Meaning Originalism ("the New Originalism"). Keep a sharp eye peeled for his paper. Alexander frequently is the guy who makes a "key move" that shifts the debate.