Sunday, April 01, 2012

Contra Wilkinson


Over at The Moral Sciences Club, Will Wilkinson classifies originalism as a form of "judicial activism." While he may be correct in one way or another, here's where I come to full stop.

The orginalist argument is somewhat like the argument that although men now wear baseball caps instead of fedoras, they should begin wearing fedoras because they used to wear them.

Um, no.

The originalist argument is that rules should be interpreted on the standard of what their framers/ratifiers intended them to mean.

If the framers/ratifiers of a club's rules did, in fact, mean to specify the wearing of fedoras (as opposed to, say, caps, or even just headgear in general) as a condition of membership, then that's what the rule means, period, end of story.

That doesn't mean the club can't change the rule -- through whatever process it has for doing so -- but the originalist theory dictates that the rule doesn't automatically change itself through a mechanism of re-interpretation.

That's what "rule of law" is all about. Non-originalism isn't rule of law, it's rule of fad.

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