I'm pretty sure both you and Balkin understand the differance between originalism being a fundamentally dishonest facade for political preferences, and Scalia's originalism sometimes being such.
But, I suppose that, if you want judges to substituted political preferences for the law, (only your's.) claiming that anything else is impossible IS kind of important.
a) if the leading proponent of a theory sold as the absence of personal preference is incapable of applying it without obvious influence of his preferences, then its at least as likely that the theory itself is unworkable as it is that this leading proponent is failing to apply it as intended.
b)"claiming that anything else is impossible" No. That's the entire point Brett. I believe that decisions upon the margins may warrant the injection of policy preferences. In fact, dare I say, the balancing of policy preferences at the margins of positively enacted law nicely encapsulates the judiciary's task.
What is frustrating about Scalia, and originalism generally, is NOT the injection of personal preferences. Its the dramatic originalism song-and-dance; "my hands are tied, because I'm faithful to originalism this is the only result I could possibly reach" B.S.
Its the pro-Originalism position that pretends its conclusions are the only possible "right" conclusion.
To be fair to Scalia, he was trying to do something a little more than just enshrine his personal preferences, namely to resolve the blatant contradiction between two shibboleths of our nation's approach towards religion: incorporation of the Establishment Clause, and the use of "ceremonial deism" on/in our money, legislative sessions, public buildings, Declaration of Independence, etc. As so many before him have, he crashed & burned in the attempt. Personally, I think we should just evade the question as long as possible and hope that Michael Newdow shuts up. Because there is no palatable resolution and no urgent need for consistency.
The amusing thing is that Scalia criticized the majority for failing to recognize the need to reconcile competing interests. This was a bit like hearing George Bush decry religiosity. Scalia has been the standard-bearer for bright-line rules and against weighing and balancing since Day 1. Just shows what happens when your own ox is gored, I guess.
Sorry, was that a Deuteronomic reference? I hope nobody's offended 
While I suppose the entire discussion jumped off from this decision specifically, my comments were more general criticisms of Scalia's jurisprudence.
what cbmuche said.
I like Publius' line between symbolic issues like the 10 commandments and real (in your life) issues like school prayer. I went through 12 years of Catholic school and the 10 commandments were all over the place, not that anyone seemed to pay attention to them.
It's like with animal rights, I just can't get excited about it as long as we have things like poverty, racism, and violence to work on.
* Agree with Brett on the ineffectiveness of using ad hominem attacks on Scalia's vagaries to discredit the claims of originalism. For the record, this was the Term where Scalia first began to irritate me. On the other hand, it was Thomas's finest Term in a while.
* Agree with Publius, much more than he might expect, re: Decalogue:
I really could care less. The Ten Commandments is one of those stupid symbolic issues that couldn’t matter less and has absolutely no relevance and no effect on anyone’s – or any society’s – life or morals. . . . I’ll just watch idiots let themselves be fooled into supporting leaders who take strong stands on matters of irrelevant symbolism while doing nothing to improve their lives.
I certainly wouldn't use "idiots," but I do view this as part of the ongoing GOP head-fake of social conservatives that yields stunts like the Schiavo bill, the flag-burning amendment, and the Senate reciting the Pledge of Alliegiance on the steps.
* While I still hold out hope for a principled revamp of Establishment Clause doctrine, I grok (check the reference! ha!) my three-lobed colleague when he opines:
Personally, I think we should just evade the question as long as possible and hope that Michael Newdow shuts up.
Plainsman & Brett,
How exactly would you attack the theory, as theory, without pointing to specific instances wherein the theory was 1) advertised as applied but 2) accomplished none of the "absolutely, no personal preference inserting" proclaimed to be the one true & right means of interpretation?
Seems to me that results of application are awfully good indica of theoretical validity.
The one place where a "gotcha" works is if the self-called originalist judge says the original meaning of a provision is clear and you can demonstrate that it isn't, it's genuinely ambiguous. This does happen. (Though everyone admits, at the level of principle, that originalism can't always supply an answer. The claim is rather it supplies some constraint, and that this constraint must be respected when it can be discerned.)
Demonstrating that a self-called originalist judge got the meaning wrong, or just didn't do originalist analysis at all (like Scalia in Raich) presumes originalism itself as a criterion for making the criticism.
Publius's argument wasn't even that originalism is practically unworkable because judges are so prone to temptation that they will always cheat and defect. It was that it is a fundamentally dishonest facade for political preferences. No, it's a coherent theory.
Some of those who profess it may be stupid or bad men, as with any other theory.
Look, Scalia isn't, even on his own terms, a consistant originalist. Read his writings some time, he's not shy about it: He has an absolute loathing of overturning precidents, even precidents he KNOWS are wrong.
As far as Scalia is concerned, there are things that are more important than what the Constitution actually means. Some of them he's frank about, like whether the ink on a law has dried yet. And, unsuprisingly, some of them he's apparently a bit shifty about.
He's a very half-hearted originalist, as would be obvious if there were any whole-hearted originalists on the Court.
For the record, Plainsman, I don't think Publius would agree that originalism is a coherent theory. I sure as heck don't, for a similar reason as he's stated in the past (and that I've written on, not so much blogged on), viz., the indeterminacy of words.
Right, and you know my response -- for all their indeterminacy, we sure seem to turn to written words whenever we want to seal a deal, sign a lease, give complex instructions, remind ourselves or others of something, and in general pin things down. Reasonable determinacy is possible because it is actual.
And then there's the fact that the whole legitimacy of judicial review of legisation depends on the intelligibility of the charter the judges are supposed to be enforcing, and which is supposed to authorize their actions.
If one abandons that, he must argue in frank, raw terms that America ought to be (what it increasingly appears to be) an oligarchy headed by a committee of elite lawyers centralizing political discretion in themselves.
The prospects for that vision gaining popular legitimacy are not high, in my estimation -- which is why the right needs to keep pressing it, forcing it to the fore.
Reasonable determinacy is possible. But it doesn't come from the words themselves. It comes from the practice of using them. The meaning of the Constitution is not determinate because of some inherent determinacy of the words themselves. If it is determinate at all (dubious, IMO), it is because of, in the practice of interpreting them, reasonable parameters of meaning have coalesced.
This is all Wittgenstein, BTW. Again, it is not a subject that can coherently be addressed in a blog or a blog comment format, which is why I've never gotten into it in this medium.
My point is simply that I think Publius generally has a different view on originalism than what you describe. While his point here may be that J. Scalia is an inconsistent orignalist at best, I tend to think his larger view is that originalism is, while a compelling narrative, is an incoherent hermeneutic, because it cannot accomplish what it purports to accomplish (constrain preferences).
I'll take what I can get; It sure as heck constrains preferences better than the view that preferences shouldn't be constrained. 
Brett,
I understand the desire to constrain preferences. I sympathize with it, to some extent, though far less than the typical judicial conservative. I simply do not think that originalism is in any way, shape, or form effective in doing so.
I don't think Publius does either, though I'd like him to correct me if I'm projecting my own views onto him. Thus, when he criticizes J. Scalia for using originalism as a facade for political preferences, I don't think he's just saying that Scalia does so (but a better originalist might not). I tend to think his critique is that ALL so-called originalists do so, because originalism doesn't constrain preferences at all.
It's not that J. Scalia is a bad originalist. It's that originalism is incoherent. Judging on the margins, like cbmuche said, involves the injection of policy preferences. That's what judges do. It's what they have always done.
There's a risk of tyranny of the minority, sure. But the alternative political models -- the ones typically espoused by judicial conservatives -- run the risk of tyranny of the majority. I'm much more afraid of the latter than the former, and I think the Framers were too, Madison in particular.
I wonder what it will be like in 20 years when people who don't really believe it's a crime are in charge. Will there be any change?
Do you really believe that originalism can't constrain preferences? At all? Come on, now!
When it is widely, almost universally, understood that something SHOULD be done, those who don't want it done are compelled to argue that it can't be done. So that the failure to do it can be excused.
Constraining the preferences of judges and lawmakers is the whole POINT of having a written Constitution. Everybody understands this. And if it constrained the government in a way more to the liking of the left, you'd probably be the most vehement proponents of originalism.
Of course, since words can't constrain meanings, you probably read this as a recipe for spinich quiche. Tell me how it turned out, will you? LOL
I'm curious what you all thought about the least-covered, yet probably most important case decided yesterday, Castle Rock v. Gonzales.
Uh, I noticed that none of you have mentioned Justice Thomas's concurrence in the TX case, which kicks major ass:
http://southernappeal.blogspot.c...display-
is.html
Thomas rules! Pub. drools!
Brett,
I've told you exactly what I believe. I've also told you that I don't think proper explanation therein can come across via blogging.
I've also told you why some determinacy of meaning is possible, which is why communication is possible.
None of that requires a belief in the inherent ability of the words themselves -- independent of the practice of interpreting them -- to constrain preferences.
Wittgenstein basically established that the notion of a rule-based theory of meaning -- a theory that originalism cannot survive without -- is incoherent.
I harbor no doubts as to the persuasiveness of this point to you -- or to any other originalists, for that matter, which is partly why I never bother trying to explain it. You have your belief system, I have mine, and neither of us is going to convince the other.
But please don't insult my intelligence by pulling a classic Scalia form of argument -- arguing as if your perspective is so self-evident and universal that any disagreement therein is patently ridiculous.
Honest disagreement is fine with me.
TP, I'll grant you that words have no power without interpretation; The relationship between meaning and symbol is in the mind, not the ink.
HOWEVER.
The only reason written language is of any use to us for anything more than personal notes, is that we have an agreed upon system of how those symbols will be connected to meanings. And words, together with that system, do indeed constrain meaning... For people who approach the words in good faith, and LET them constrain the meaning.
The problem with rejecting originalism/textualism, is that every other mode of "interpretation" basicly gives up on the document itself, and uses it only as an inkblot on which to impose meanings derived from something else.
And as a magic talisman to wave about, in order to convince the gullible to accept their preferences in place of the ones that were enacted.
Yes, I have my belief system, you have your's, and your's is fundamentally contradicted by the fact that you're typing away here, and expecting meanings to be transmitted successfully.
sorry to dive in late - i've been traveling. anyway, to address the TP-Plainsman debate, what i think the real fundamental goal is - and one that everyone shares - is constraint. there has to be something constraining the decisions of judges. that's fine - and I believe text and the interpretation of text formalized into precedent is best way to do that.
but i do think originalism as a theory is fundamentally flawed. i've given my reasons a lot so i won't go into them agian here.
what i think is really going on with originalism is simply formalism under a different name. conservatives want to adopt clearer bright-line rules of constraint. my gripe with originalism is that it's simply imposing an arbitrary formal test (often aligned with political interest) dressed up as some objective historical truth. if conservatives would just say, "we need a rule and here's a rule and here's why," i'd be more receptive to that.
but to hide behind cherry-picked historical string cites is just an exercise in dishonesty (even if subconscious). i mean, good lord, you can't even read a thomas opinion anymore without suffering through unending cites to 17 and 18th century materials saying god knows what. i always skip them. frankly, they strike me as being similar to the inaccessible latin scribblings of the middle ages that no commoner could hope to read or understand
the constitution simply shouldn't mean what amateur historian justices and law clerks think that history means.
I doubt Thomas's historiography is worse than that of most professional historians. He uses much the same sources and methods, and by now he has done it pretty often. Of course he "picks out his friends," but so do the pros.
Brett,
And words, together with that system, do indeed constrain meaning... For people who approach the words in good faith, and LET them constrain the meaning.
You've contradicted yourself. You concede that words themselves have no power to constrain interpretation, but then you assert that people should "let" the "words" constrain the meaning.
Words alone do not constrain meaning. It is the practice of interpreting them that does. Consider the game of baseball. I don't care what the rulebook says. If every umpire all at once refuses to call any curveball a strike, and every player refuses to treat a curveball as a strike, and all the managers refuse to treat a curveball as a strike -- guess what? Curveballs won't be strikes, regardless of what the words of the rule say or don't say.
Words themselves do not constrain meaning. Therefore, any theory of interpretation which relies on the notion that text alone constrains meaning to a specified point is simply erroneous. You've basically admitted as such.
I've explained to you several times why communication is possible -- in the practice of using the language, of interpreting them, a reasonable determinacy is indeed possible. But that doesn't come from the inherent potency of the words themselves.
You're either not understanding, or intentionally misrepresenting my words.
Pub.-
That's the problem, you know: those damn, dirty commoners!
"You're either not understanding, or intentionally misrepresenting my words."
Right back at you.
Words have no inherent potency. In conjunction with a shared system of interpreting them, they're quite potent. And yet, again, it's true that words have no power to discipline somebody who deliberately sets out to read "black" as meaning what other people mean by "white".
But since all the real utility of language derives from that use of a shared interpretive system, such people are a very real threat to society, especially when they find their way into positions of power.
I don't know, maybe lawyers think that sort of thing is clever, and consider Humpty Dumpty's approach to language an ideal to aspire to, but the vast majority of people do not. In fact, they hold that kind of thing in contempt.
Right now the legal system has as much perception of legitimacy, only because the average person is largely ignorant of it's workings. Kelo spiked a right valued by so many people, that it has the potential to lift that ignorance, and cause the majority to realize that the legal emperor is naked as a jaybird.
If I were you, I'd worry about that.
Good thing you're not me.
meant to add
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