The Instigator
FourTrouble
Pro (for)
Losing
0 Points
The Contender
YYW
Con (against)
Winning
5 Points

Originalism is the correct principle for interpreting the Constitution.

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Post Voting Period
The voting period for this debate has ended.
after 2 votes the winner is...
YYW
Voting Style: Open Point System: 7 Point
Started: 2/13/2013 Category: Philosophy
Updated: 3 years ago Status: Post Voting Period
Viewed: 4,705 times Debate No: 30162
Debate Rounds (4)
Comments (18)
Votes (2)

 

FourTrouble

Pro

RESOLUTION: Originalism is the correct theory for interpreting the Constitution.

Originalism says in short that the only coherent answer to the question "What does the Constitution mean?" is that the Constitution means what its authors intended it to mean. I'm Pro, YYW is Con.

The basic rules for debates on DDO apply: R1 is for acceptance, no semantics, no new arguments in R4, and whatever else I'm forgetting to mention but gets applied generally across the site.
YYW

Con

Let's roll!

Many thanks to my opponent for this debate. I'll await his argument in Rd. 2.

Peace out.
Debate Round No. 1
FourTrouble

Pro

Thanks for taking the debate YYW.

Suppose you see the word "HELP" inscribed on the sidewalk in front of an office building. It could immediately be asked, what does it mean? You consider the scenario and come up with all sorts of plausible answers. Perhaps the author was a kid having some fun while waiting for the cement to dry. Or perhaps, you speculate, the author was a criminal attempting to send their partner a secret message. Perhaps "HELP" is an initialism of some sort. Whatever the case, you are able to come up with all sorts of theories to explain the word's meaning.

There is, however, an important point to notice about how we ascribe meaning to the word: the intention of the person who put the word there in the first place. If the word was written by a kid having some fun, the word obviously has a very different meaning than if it were written as a secret code between two criminals. The obvious conclusion here is that the intention behind the production of any text is somehow intimately related to that text's meaning.

To further emphasize this point, consider the following possibility: you discover that the word "HELP" was not the result of any human affairs. Rather, suppose by chance a stream of water coming from a leaky pipe somehow etches the word into the sidewalk. It turns out that there was no intention whatsoever behind the word's existence. With this knowledge in mind, it becomes impossible to interpret the word's meaning because it no longer communicates anything. For communication to occur, some message, not all messages, must be conveyed. Without an intention behind the word's production, we would no longer be able to identify a particular message. We could no longer rightfully say the word means this or that.

The logic I have outlined here applies to the interpretation of the Constitution because the Constitution is a legal document, and as a document, it is a vehicle of communication. It does not mean anything that interpreters would like to to mean. It has a specific meaning determined by the message it was intended to communicate. The Constitution is not a living organism.

Originalism is the view that the correct interpretation of the Constitution attempts to identify the intention of the Constitution as determined by the moment of its production. This view thus makes two assumptions about the act of interpretation: 1) that there is something to be interpreted, and 2) that the something to be interpreted was there before you set to work. The question interpreters of the Constitution should ask is, what is the meaning of the Constitution as drafted and ratified, not what is the meaning I would like the Constitution to have.

The reason the Constitution, as a vehicle of communication, cannot mean anything interpreters would like to mean is because then the Constitution would say nothing at all. It would be nothing more than a Rorschach test, molding and twisting to whatever meaning interpreters would like to ascribe it. This view, known as the Living Constitution thesis, is the primary alternative to Originalism, and it is utterly incoherent for numerous reasons.

I have already pointed out the main problem with Living Constitution theorists: the Constitution is a document, and as such, it must communicate a single message, not all messages. If we assume that a document can say everything, that it can have various meanings that expand or change over time, then it would follow that the Constitution in fact says nothing.

The only way that we can say an interpretation of the Constitution is right or wrong is if we assume that Constitution sends a message that does not change over time. If the Constitution's meaning changes over time, then no interpretation can ever be right or wrong. Only if the meaning of the Constitution precedes any act of interpretation can we say distinguish between different interpretations and evaluate them as right or wrong.

This does not mean the Constitution's meaning will be agreed on by everyone. Obviously, the task of figuring out what the Constitution meant as drafted and ratified is a very difficult task, and there is bound to be disagreement. Thus, historically different efforts to interpret the Constitution may produce a different account of what the Constitution means, but the actual meaning itself (and the goal of these efforts) will remain the same: the original meaning.

The main point I want to emphasize here is that just because the determinations of what the Constitution means change over time does not mean that the Constitution's meaning itself changes. When particular determinations of meaning give way to another, two implications necessarily follow: 1) that the second determination of meaning is more correct than the first determination, and 2) therefore both determinations of meaning are being judged and evaluated according to some metric that precedes both determinations. Thus, it is quite clear in the very act of determining that one interpretation is better or more correct than another that there must be something in relation to which both interpretations are measured, and this something must be prior to and independent of efforts to determine it. There has to be something you are trying to get right when you are engaged in the act of interpretation. For if there is not, then we can never say that one interpretation or determination of meaning is better or more correct than any other.

Originalism is therefore the correct view of interpretation. Any other view is incoherent because it is impossible to say whether one determination of meaning is better or more correct than another determination. The Constitution was created with a purpose. And when something is not just found in nature but rather designed, to find out what it means you have to figure out what the designer had in mind.
YYW

Con

Many thanks to my opponent for the debate.

In this first round of debate I’m going to do three things:

(1) Evaluate the resolution.
(2) Clarify what originalism is.
(3) Explain why, while originalism is a valid paradigm of constitutional interpretation, that it is not necessarily the only valid paradigm of constitutional interpretation because of its inherent limitations.

(1) Evaluation of The Resolution:

The resolution states: “Originalism is the correct principle for interpreting the Constitution.”

The resolution asserts that “Originalism is the correct principle for interpreting the Constitution.” Based on my opponent’s first round, it is necessary to limit evaluation examination to only the Constitution of the United States. Because the resolution casts originalism as ‘the’ correct principle for interpreting the constitution, the use of the word “the” indicates contextually that Originalism is the ONLY correct principle of constitutional interpretation. If Originalism is the ONLY correct principle of constitutional interpretation, then all other principles/paradigms (and I will use those words interchangeably) are incorrect, which is to say that they are not valid principles of constitutional interpretation. Because the resolution asserts this, in order to sufficiently affirm his case, my opponent must rule out all other paradigms of constitutional interpretation as having possible validity to sustain the claim that originalism is the only correct paradigm of constitutional interpretation. It is permissible, therefore, that in negating this resolution, I as CON may accept the validity of originalism so long as that validity is not held as exclusive -meaning that there are than more than one valid paradigms of constitutional interpretation OR that no one paradigm is more valid than another.

(2) Originalism:

Originalism is defined by a legal doctrine which holds that “the meaning of the Constitution should be settled by reference to the original understanding of those who ratified it.” (Barnett) Or, as described by Antonin Scalia “Originalists believe that the Constitution should be interpreted to mean exactly what it meant when it was adopted by the American people.” (Smith, p. 162)

There are, however, three different kinds of originalism: (1) Original Intent- the intent of those who wrote the constitution at the time it was written, (2) Public Understanding- ordinary meaning of literal words of the constitution and (3) Textualism- distinguishes between the intent of the person who wrote the actual constitution, and the actual words used in the constitution. Scalia, a visceral critic of Original Intent, is a widely published champion of Textualism. (Smith, 163) Scalia is an ardent critic of Original Intent because (a) people can say things they do not mean, (b) deciphering what law makers ‘intended’ risks involving a casuistic alchemy of legal principles which effectuates the same kind of judicial activism that originalists ardently seek to avoid and (c) because he asserts that the literal text of the constitution itself, the words written, as what was ratified -rather than the unspoken thoughts of the framers- is and can be the only viable source of legal authority. The text and only the text, then, Scalia posits, is sufficient and is only sufficient to serve as a source of Constitutional Law. This has the salutary purpose of elevating the law over men -legislatures and judges- which thereby legitimizes the practice of judicial review where the ratified words of the Constitution are the sufficient metric by which measures of government are evaluated.

(3) Evaluating Originalism:

(A) Meaning and Circumstance

As described by Smith (167), “under the conventions of our language, almost any sequence of words can communicate more than one meaning, depending on the circumstances.” That is to say, to interpret on text alone ignores the unspoken meaning which is found in intent, because while it may be the case that it all and only those words which are ratified into law can be a source of legal authority as proscribed by the constitution, the words of the constitution alone are not sufficient to encompass the whole meaning of the text itself, because it fails to take into account the context in which the words themselves were written. In this way, intent is a means by which meaning may be determined. (Smith, 169) Context matters because the meaning of a words which describe a concept may be subject to change over time, such that while the use of words to describe a concept vary according to the time and place in which they were recorded, the values and principles of which they are descriptive do not. It is to evaluate laws on the basis of these values and principles which originalism aspires to achieve, so, the text alone (Scalia’s textual originalism) cannot suffice.

(B) Less than Objective Objectivity and Equally Valid Competing Paradigms

The appeal of originalism is broad as a paradigm because of its claim to posit legal objectivity. Indeed, this is the primary appeal of originalism -but it is a claim which ignores the reality of the Judge’s function. Fundamentally, the judge is the interpretive instrument of the legal system, such that his or her role is theoretically to apply standing precedent to existing cases which may produce a verdict that will stand as precedent for future cases. This judicial method (of applying past cases to present cases) is the judicial method known as “stare decisis” -which translates roughly from Latin into “let the decision stand,” and means that past cases serve as sources of legal authority for future cases -but all cases are at least in theory guided by the constitutional principles. So arises the interpretive problem of the American law.

The problem of interpretation stems from the application of past precedent and constitutional principles to legal questions invoked by given cases at hand which are novel. In the presence of novel challenges, which is to say that certain legal questions that involve circumstances that invoke legal questions which have not yet been asked before, new law is functionally written where in the authorship of judicial opinions which render holdings that serve as precedent for future cases. New legal challenges arise from new circumstances that emanate from social, economic, political or societal change over time -thereby necessitating legal casuistry that hinges on a subjective application of legal principles (from the constitution or case law) whether those cases are objective or not. That being the case, the claims of objectivity on which the paradigm of originalism is predicated turns out to be less than objective.

That is not to say, however, that Originalism is more or less valid than competing paradigms of constitutional interpretation. If originalism in practice turns out to be less than objective, objectivity in the law becomes, rather, a target towards which legal theorists and judges aspire in interpreting legal questions -which is more or less possible in either the Originalist or Living Constitutionalist school of thought. The fundamental difference, rather, comes from the question of what constitutes valid legal authority -that of all an only those words ratified by the people, or other influences to be discussed in Rd. 3.

In Rd. 3, I will discuss the kinds of sources of legal authority and evaluate their significance to Originalism's being the only valid paradigm of constitutional interpretation.


SOURCES:

Barnett, Randy. “Restoring the Lost Constitution.” at pp, 89
Smith, Tara. “Why Originalism Won’t Die- Common Mistakes in Competing Theories of Judicial Interpretation. Duke Journal of Constitoutional Law & Public Policy. Vol. 2., (2007)
Debate Round No. 2
FourTrouble

Pro

FourTrouble forfeited this round.
YYW

Con

My opponent has forfeited his last round. How regrettable...

Extend all arguments.
Debate Round No. 3
FourTrouble

Pro

I apologize for forfeiting the previous round. If voters see fit, they should give conduct points to my opponent.

I agree with the majority of YYW's points. What I disagree with is the conclusion YYW derives from them. I've tried to boil his argument down and this is what I have come up with: because objectivity is a target towards which legal theorists and judges aspire, Living Constitutionalism is therefore a valid school of thought. I agree with YYW's premise, that objectivity is a target towards which legal theorists and judges aspire, but disagree with his conclusion, that Living Constitutionalism is therefore valid.

I actually already addressed this argument in Round 2. YYW offered no counter to it.

The moment that YYW admits that objectivity is the goal that legal theorists and judges aspire to, YYW must admit that the meaning of the Constitution must be something prior to and independent of efforts to determine it. The implication of setting objectivity as the end of legal interpretation is that 1) there is something to be interpreted, 2) that something exists prior to the act of interpretation, and therefore 3) that something remains the same over time.

YYW is absolutely correct that the determinations that particular judges ascribe to the Constitution change over time. But this does not mean that the Constitution or its meaning changes. As I explained in Round 2:

When particular determinations of meaning give way to another, two implications necessarily follow: 1) that the second determination of meaning is more correct than the first determination, and 2) therefore both determinations of meaning are being judged and evaluated according to some metric that precedes both determinations.

If an interpretation of the Constitution is to be called wrong, it must be in relation to something that precedes it. In fact, for an interpretation of the Constitution to be right, for the claim of rightness or wrongness to even be intelligible, there must be an objective meaning to the Constitution. If there is not an objective meaning to the Constitution, then we can never say that one interpretation or determination of meaning is better or more correct than any other.

YYW's argument blurs the line between ontological objectivity and epistemic objectivity. Originalism claims that the Constitution's meaning must exist prior to and independent of attempts to determine it. This means that the Constitution's meaning is ontologically objective. It exists out there as something that we are trying to gain access to. The problem is that our perspective will always be limited and mediated by our particular social context which is itself always changing, so as a result our epistemic access to the Constitution's meaning will always be subjective. To put it another way, because we cannot step outside of our minds and understand precisely what the authors of the Constitution intended, the Constitution's meaning is not something we can determine with epistemic objectivity.

Originalism never makes any claims that we have epistemic objectivity. Originalism makes a much weaker claim. It claims that the Constitution has an objective meaning even if we do not have access to that meaning. Originalism claims that our efforts to interpret the Constitution should aspire towards that objective meaning even if we cannot figure it out. Point is, originalism sets certain constrictions on interpretation.

The reason Living Constitutionalism is incoherent is because if we allow that the Constitution's meaning (not its particular determinations but its actual objective meaning) expand or change over time, then it follows that the Constitution does not in actuality have any meaning. If the meaning of the Constitution is determined in the act of interpreting it, as Living Constitutionalism suggests, then we cannot say one interpretation is more correct than another because there is no metric by which to evaluate them. If no interpretation can be established or judged as better than another, then it follows that the Constitution has no meaning.

This is why Living Constitutionalism as a theory is utterly incoherent. This is in fact why every theory other than Originalism is incoherent.

I made all these arguments in Round 2 and they have yet to be addressed by my opponent. I await his response.
YYW

Con

As a disclaimer, the reason I did not make further arguments in the previous round is because I didn"t want to have a disproportionate amount of character space to my opponent, even though he did forfeit his last round, in the interest of good sportsmanship.

Some points of clarification:

I didn"t say that objectivity is THE goal towards which legal theorists necessarily strive, but rather the goal that Textualists aspire. I then demonstrated how Textualism, the strongest version of Originalism, falls short of achieving that objective. That being the case, however, does not prima facia invalidate it as a paradigm of constitutional interpretation.

Rather, because of the limitations of textualism (and other forms of originalism), it cannot be affirmed that Originalism is the ONLY valid paradigm of constitutional interpretation -where sole validity implies both the absence of limitation and universal sufficiency (which is to say that a given paradigm is the best in every case) of a paradigm as such.

It is my contention that while originalism does hold merit as a paradigm of constitutional interpretation, it is NOT the ONLY valid paradigm of constitutional interpretation -because no form of constitutional interpretation is objectively more correct than another.

It is permissible to disagree on HOW to interpret cases and precedent, but the very fact that not all justices in the highest legal authority in the land (The Supreme Court of the United States) do not subscribe to an Originalist paradigm demonstrates that Originalism can not be the only valid paradigm of constitutional interpretation.

That established, my opponent further misunderstands what legal objectivity is. To be objective as a jurist is only to be a third party, which is to say that the person adjudicating is not party to the conflict in question. The fallacious misconstruction as objectivity as something which my opponent seems to define against his understanding of "living constitutionalism," but what he means is judicial activism. Once more, he is not refuting what I said, but what he thinks I mean -and he has simply missed the mark.

Even assuming that the constitution exists prior to all other forms of legal authority in the United States, that does not mean that Originalism is the only valid paradigm of constitutional interpretation because, as I mentioned earlier, it is the task of the law to order society which necessitates the expansion and equally the evolution of legal precedent to apply constitutional principles to answers of legal questions presented to the court. It is from those constitutional principles being applied to cases from any paradigm of interpretation that legal opinions are formed.

Again, while my opponent attempts to philosophically ground a theory of proper constitutional interpretation, he in doing so ignores both (1) the reality of the bench of the highest court in the nation, (2) the reality of how legal opinions are written and (3) the necessity of appropriating constitutional principles to legal cases as a practice of law.

(1) As I mentioned in Round II, Scalia"s textualism does not exist as a legally sovereign paradigm and my opponent concedes the limitations of both textualism and originalism. He furthermore misunderstands applied forms of originalism (such as Scalia"s textualism) and elects rather to refute a claim of "epistemic objectivity," which I never asserted. Scalia, a justice of the Supreme Court of the US, by contrast, did -and here my opponent highlights his lack of distinction between the three forms of originalism I mentioned in Rd. II.

(2) My opponent"s claim that "The reason Living Constitutionalism is incoherent is because if we allow that the Constitution's meaning... expand or change over time, then it follows that the Constitution does not in actuality have any meaning." is likewise flawed because it ignores the reality of how legal opinions are written. There are two sources of legal authority used in writing legal opinions: (I) The Constitution and (II) Relevant case-law -the latter being the exposition of the principles of the former, as new legal questions are presented to the court. Each new opinion becomes case-law after it is handed down. The task of the jurist is to apply previous decisions and constitutional principles to arrive at cases consistent with previous decisions, pursuant to the doctrine of stare decisis. My opponent categorically ignores this reality.

(3) The expansion of case law (that is the exposition of constitutional principles) over time follows from the presentation of new legal questions to the court, because of both the changing of society and the changing of society"s laws. Time progresses, and so too does the nature of legal questions. For example, the question of surveillance by GPS technology would have been inconceivable at the time of the constitution's being authored, but the right to privacy (stemming amend.s 1, 3, 4, 5, 9 and 14) is an intangible constitutional principle regardless of the time in which a question involving it was presented to the court. Because of the enduring novelty of legal questions, exposition is necessary as principles are appropriated to cases over time. The meaning, however, remains static (unchanged) in that process -regardless of which constitutional paradigm a jurist subscribes to.

So, my opponent has misunderstood the nature of originalism, the mechanism of legal adjudications, and equally misunderstood my case. He refuted that misunderstanding, and proceeded as such. Consequently he has failed both to refute my points, and equally failed to affirm the resolution. I do, however, thank him for a most interesting debate on a topic which I rarely get to talk about.
Debate Round No. 4
18 comments have been posted on this debate. Showing 1 through 10 records.
Posted by 16kadams 1 year ago
16kadams
I know this debate is old as fvck, but ima comment still.

"Yea, definitely. I could not have imagined a better opponent for this debate."

Yeah YYW is pretty OG 360 noscope rekt m8. The only person better (maybe) would have been bluesteel because, you know, lawyer in training.
Posted by YYW 3 years ago
YYW
It's cool, dude. No worries.
Posted by FourTrouble 3 years ago
FourTrouble
Oh fvck, I didn't realize that was the last round and I already posted my argument. Eh, I could have put a lot more effort into this debate. Sorry YYW.
Posted by YYW 3 years ago
YYW
I'm looking forward to it too. I don't know many other people on here that are interested in paradigms of constitutional interpretation...
Posted by 16kadams 3 years ago
16kadams
This will be fun.
Posted by WarEagle 3 years ago
WarEagle
Thomas Jefferson wrote, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
Posted by Bull_Diesel 3 years ago
Bull_Diesel
Nah, definitely has been changed.
Posted by Bull_Diesel 3 years ago
Bull_Diesel
Wow.. guess it didn't load correctly yesterday. Unless you changed it what loaded when I read this the first time was just "Originalism" as debate topic and the definition

Sorry brother
Posted by FourTrouble 3 years ago
FourTrouble
Yea, definitely. I could not have imagined a better opponent for this debate.
Posted by YYW 3 years ago
YYW
Want to debate me? I do know a thing or two about this subject.
2 votes have been placed for this debate. Showing 1 through 2 records.
Vote Placed by rross 3 years ago
rross
FourTroubleYYWTied
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Total points awarded:04 
Reasons for voting decision: Interesting debate. I liked Pro's arguments, actually, but they were effectively rebutted by Con. Conduct for the forfeit. Why do you keep doing that?
Vote Placed by wrichcirw 3 years ago
wrichcirw
FourTroubleYYWTied
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Total points awarded:01 
Reasons for voting decision: ff