Constitutional Decision Making: Better Than What?

2 Pages 573 Words

The presentation of Paul Brest’s argument in his essay, “The Misconceived Quest for the Original Understanding” introduces (to me at least) the idea of interpreting (or in the idea of Fish ‘creating a text’) the, United States two-hundred year-plus-old, constitution in a two ways: “originalism” and “nonoriginalism”. Focusing first, upon the former, these “extreme forms of originalism”, that which Brest argues against, illustrate themselves more fully in the terms “strict textualism” and “strict intentionalism”. The choice in looking at these radical forms is “because moderate originalism and nonoriginalism so often produce identical results, and their practices so often seem identical…[,]” therefore, by looking at more extreme versions, the ‘quest’ may seem to simplify itself, making the difference clearer.
The first of the two “most extreme forms of originalism” is “strict textualism”. This term most specifically implies literalism, a readily observable interpretation; a philosophy practiced by the literary interpretatists, Wimsatt and Beardsley, in their ontological argument “The Intentional Fallacy”. A “literalist understands text to encompass all those and only those instances that come within its words read without regard to its social or perhaps even its linguistic context” making a literalist “unable to handle the ambiguity, vagueness, and figurative usage that pervade natural languages,” thus “…produc[ing] embarrassingly silly results”. Similar to “The Intentional Fallacy”, the literalist expects everything to be fully and clearly expressed, leaving nothing implied or based in the ‘adopter’s’ or the historical biography.
On the other hand, “ strict intentionalism requires the interpreter to determine how the adopter would have applied a provision to a given situation, and to apply it accordingly”. This type of interpretation is in oppos...