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Originalism and the U.S. Constitution is a mug's game

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Donald Trump's nominee for the U.S. Supreme Court, Neil Gorsuch

The Donald's pick to fill the current vacancy on the Supreme Court of the United States is Neil Gorsuch. He is a constitutional originalist.

That means he interprets the U.S. Constitution according to its original meaning. I haven't gone deeply enough into the man's beliefs to determine whether he is among the minority of originalists who look for the drafters' intent, or, instead, is a textualist who goes by the original plain-language meaning of the Constitution as understood at the time it was written.

Both propositions, of course, are a nonsense.

On the question of intent, reading the minds of dead men is a form of divination, nothing more. And recourse to the debates at the time doesn't help: all that does is attempt to conflate the alleged intentions of a lot more dead men.

"Intent" is, in any case, impossible to determine. Must we go back to the New Critics, or at least to Roland Barthes, to explode that notion? Put simply, even if an author expresses an intent, that expression is a series of signifiers that merely point to other signifiers. What did the author mean by their expression of intent? And what, in turn, does the new explanation mean? That way, madness lies. And it only gets worse when the text is a collective enterprise.

So, what about plain-language "original" meaning? What does "original" signify? Even more dead men (and women) must be enlisted, in an impossible quest. Meaning shifts continually: the relation between signifier and signified is ever-changing, and is continually contested. One determines a meaning of any text from context, which itself is never fixed. There is no such thing as "original" meaning.

Let's bring this down to earth. The Constitution proscribes "cruel and unusual punishment" (Eighth Amendment) and "unreasonable searches and seizures" (Fourth Amendment). Rights not explicit in the Constitution are protected by the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

What did the Framers mean by "cruel and unusual?" How do we determine what they meant by "unreasonable?" What "rights" (unnamed) are protected in the Constitution? What did that reference to other "retained" rights mean at the time?

Originalism is the new bibliomancy. A magic means of getting to a preordained legal conclusion.

A lawyer on Facebook told me he had never heard of Ferdinand de Saussure. No surprise there. But perhaps an introductory course in semiotics would be good for law students whose certainties about textual meaning have so perverted the course of American legal hermeneutics.

[Disclaimer: I am not by any stretch of the imagination a U.S.  Constitutional scholar, or even a lawyer, although I know a thing or two about textual theory. Perhaps I'm missing something obvious. If so, the lawyers who may visit this place are invited to clarify and explain.]

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