by Matt Barr

Original sin

I'm not an "originalist," and neither is Cass Sunstein, but after that we part ways. I would argue that no one ratified what an 18th-century reader understood, they ratified words. In composing a constitution in the hopes it would continue to define and limit government power long after they were dead, the framers knew very well that different ages could read words to mean different (usually slightly different, if at all) things. But the alternatives, like "it's up to Congress," or "we knew best, so do what we did," were subjective, effectively undemocratic and/or dangerous to liberty.

The phrase, "there's method in his madness" is now used to mean "that guy seems freaky, but he knows what he's doing." When Polonius first said (a variation of) it on stage, it meant "he might be insane but there's a pattern to what he's saying." Two slightly different things, but still a useful phrase. We don't, unless we're intolerably pedantic, correct people who use it to mean something Shakespeare didn't, we know what it means, it means the same thing to all of us, because we share a common language. If someone tried to use the phrase to mean "he seems angry but he's simply applying the scientific method," we would look at him funny -- not because that's not what Polonius meant, but because it's not what everyone else means when they use the phrase.

The very reason we don't want wise men divining what the law "should" be but rather want to be governed by words is that words are objective, to the best extent possible. There can be and is a consensus in society about what words currently mean that doesn't rely on someone trying to achieve a desired result with those words. You might want "speech" in the First Amendment to mean child pornography, but the likelihood that you will change the American English lexicon so that when people say "speech" they mean and include child porn is nil. In that sense, textualism is not susceptible to abuse.

That's what I would argue. Sunstein would try to scare you with misleading warnings about creepy-crawlies that are coming to bite you and steal your lunch money.

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