It is based on the flawed premise that there was an "intent" which created a "text", which intent is embedded in the text, can be known, and can be recovered.
The very first question is: who cares? Does it matter what Shakespeare intended (one of the more likely "intents" of Shakespeare was to keep his neck out of the noose, his head off the ramparts of Tower Bridge. It's known his father was a Catholic during the reign of Elizabeth, a posture tantamount to being a traitor. Shakespeare's plays all reveal a genuflection to higher authority, by which no one means the Creator, but a more temporal authority: the Crown. Is this because Shakespeare was a devoted Monarchist? Or because he lived in perilous times in a very public profession? And if we are sure we know, can we know the intent in his poems? His plays? His characters? And if you think you do, then what? You have the definitive interpretation of Shakespeare? Says who?)
Let me take up the "can be known" part of that a moment. What is the intent of the law of Moses on the point that one should not "labor" on the Sabbath? There are quite detailed arguments about what it means. Most Christians assume it's all "legalism," because they only encounter it in the gospels where the Pharisees (who were actually more natural allies of the budding Christian movement among the descendants of Abraham, rather than enemies. Nobody fights like family. Look at John's gospel and it's almost open contempt for "Jews" (John alone uses the term, of the four canonicals). It is a sad irony of history that John's gospel fostered much of the anti-semitism of European history. Was that his "intent"? Show your work.) are condemned by Christ for trying to enforce adherence to the laws of Moses. But in their defense (to digress a moment, but point out the problem of interpretation as a final word), they were trying to keep together a Jewish community which was just about to become "Jewish," rather than Hebraic; and facing the complete dissolution of the central identity of the descendants of Abraham: Temple worship. When the Romans destroyed the Temple in Jerusalem in 70 CE (an event known to all the gospel writers, even if it did come 30+ years after the crucifixion), it forced the creation of the rabbinic Judaism we know today. The Pharisees are the "founding fathers" of that form of Judaism (in part; in part). Judaic identity is still bound up with observance of Mosaic law. So, back to that question of "intent," and interpretation of how important observance of the law is to Judaism....
You see a tip of an iceberg there. Which "original intent" prevails? That of Orthodox Jews? Sephardic? Reformed? Hasidic? Each has an answer, but which is right, and which is wrong? Which "legal answers" in this context, are the "right ones"? Maybe we should turn to Midrash.
Midrash is the discussion over the millenia of scholars and rabbis (teachers, really) about how to interpret nearly every word of the Hebrew scriptures. There is commentary on the scriptures, then commentary on the commentary, and commentary on the commentary of the commentary. In which comment is the "right" interpretation of the "original intent" of the law of Moses, found? Again: show your work.
There is a point to understanding the intent of religious law, or even religious scripture. What did Jesus mean when he told someone "Go, and sin no more"? Under an Augustinian understanding of sin and human nature, is it even possible to follow that directive? Is it a command? Or a suggestion? If you know the intent I suppose you know the answer; but how do you know the intent? All answers are simply guesses and arguments, but every argument for knowing or proving "original intent" is an argument for the unassailability of your position. Which is, in the final analysis, the most untenable of arguments.
Consider Socrates. While Kierkegaard has convinced me the true purpose of Socratic analysis is to dissolve all arguments into a kind of nihilism (that's another discussion, but also a caveat), Socrates was, the Delphic Oracle said, the wisest man in Athens. Socrates said that's because he knew what he did not know. And what no one can know (except through failure to complete the analysis started by a Socratic analysis) is the intent of a statement; not even the person making the statement. This is the fundamental insight of post-modern analysis, especially literary analysis.
Is this where I point out that legal analysis, at base, fancies itself to be a form of Socratic analysis?
A poet, playwright, novelist, may aver that he didn't mean at all what someone says her work means, or even one text (poem, play, story, etc.). But who's to say: the author, or the audience? I gave a sermon when I was still a seminary student which one mother and her son were quite impressed with (they told me so, later). But what he and she understood, was not at all what I meant! Did I correct them? Or did I hope it was a sign I had been, for the moment, a conduit of the will of God? Even God didn't pretend to know the intent of the human heart: "The heart is devious, who can fathom it?" God says through Jeremiah. 'I, God, test the heart" in order to know what is in it. Do we even know? Is our intent so pure we can know what we intended at all times, at any time?
For what I want to do I do not do, but what I hate I do. And if I do what I do not want to do, I agree that the law is good. As it is, it is no longer I myself who do it, but it is sin living in me. I know that nothing good lives in me, that is, in my sinful nature.
Paul's intent and Paul's action, says Paul, are not one in the same. So I ask again: what is the value of knowing the intent of a law, or a text, where we are trying to divine how we are supposed to interpret it?
Originalism is the fetishism of fundamentalism, and both are based on the flawed premise of an absolute knowledge that can be known and, being "original," can be trusted. It's a perfectly silly idea, actually. It intends to "recover" an original source that is pure and unsullied by time and change, as if there were a Platonic ideal that was rendered imperfect by alteration, rather than adjusted to suit an altered situation. The very idea of the common law was that it altered to suit changed circumstances. Basic principles of law and justice applied, but "Change the facts, change the outcome." Common law primarily protected property, and protected persons (tort law) only from personal injury caused by others or the responsibility of the wealthy (land owners, who were in the dim reaches of English history exclusively the peerage. Noblesse oblige, and all that.). Protecting persons not only with due process of law but in their "civil rights," is not original at all; or it it is, just not to the "original" Constitution. Then again, did the drafters of the Constitution, or those who ratified it, or those who ratified its Amendments (each and every one) intend to put a chokehold on society, binding future generations strictly to their intent? And what was their intent? And did they know it? Whose "intent" drafted the original Constitution? Whose "intent" ratified that "intent"?
It's a mug's game. "Originalism" doesn't try to find a mythical and unknowable object of knowledge. It just tries to establish an argument for whoever is doing the analysis, an argument that rests less on justice or legal interpretation, and more on justifying the outcome being sought. Jurisprudence recognizes this tendency. It even acknowledges the dilemma with the concept of judicial realism and the "judicial hunch." A judge seeking to "do the right thing" with a given set of facts and parties, "intuits" a just outcome, then seeks arguments to shore up that result. Especially in the long, convoluted history of the common law, such arguments are usually findable; or can be assembled from the materials of stare decisis. Arguably this is even how the common law works. Originalism replaces this seemingly subjective method with one it claims to be more "objective:" the "intent" or the legislature drafting the law, or the courts interepreting it, or the drafters of the article or amendment, are said to be the ruling source of interpretation and application. But how is that known, except through argument? And how is argument ever anything more than subjective interpretation aimed at the outcome already desired?
Originalism isn't hard to do; it's impossible to do. It's only another formula for churning out the answers the proponent already wants to establish. The secret is to bypass all the other arguments, the "midrash" of the common law and stare decisis, and go straight for an "argument" that is asserted to be more pure, closer to the "ideal" from which all the rest is mere shadow-play and decay by separation from the Ideal, and therefore reach the "answers that are the right ones."
But, again: right according to whom? Some long dead authority that, being long dead, cannot object “That is not what I meant at all;/That is not it, at all"?
Yeah, pretty much. Originalism is speaking for the dead. Because they can't speak for themselves. Nice work, if you can get it.
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