Recently, Senator John Kennedy (yeah, the folksy speaking one) and a Trump judicial nominee discussed conservative dogma in Constitutional interpretation (dogma that also plays out in statutory interpretation because the Constitution is just a super-statute). The discussion starts here. Many originalists now genuflect to the interpretive God of “original public meaning”—in other words, they look for the meaning of the words as the meaning some imagined public audience contemporaneously with the adoption of the Constitution would have interpreted the words. Senator Kennedy wants to know why the meaning that some imagined public audience might matter more than the meaning the actual framers of the Constitution contemporaneously attributed to the words. Senator Kennedy nails the bankruptcy of this notion of the originalist adventure that has captured the conservative imagination. One of my favorite articles on this theme is Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.
I write on a Federal Tax Procedure Blog which rarely deals with Constitutional interpretation. This Blog deals mostly with statutory interpretation, but the screwy conservative notions that affect original public meaning play out in statutory interpretation where conservative judges deploy dictionaries more or less contemporaneous with the statute text enactment to divine meaning rather than using the legislators’ own explanations (legislative history).
Side Note: Senator Kennedy (Wikipedia here) received his J.D. (basic law degree) from UVA Law School in 1977 (where he was executive editor of the Virginia Law Review) and thereafter a Bachelor of Civil Law (B.C.L.) from Magdalen College, Oxford, in 1979. He is plenty smart, sometimes masked by his folksy way of presenting himself. But that folksy way can often result in good discussions as above where he bests the judicial nominee spouting conservative dogma.
Side Note to the Side Note: I also went to UVA Law School graduating in 1967 with an LL.B. (the basic law degree at the time). The change from LL.B. was then gaining speed, especially among lower tier law schools that sought special gravitas by changing the name of the degree from a Bachelor’s degree to a Doctor’s degree. Smoke and mirrors. Our class voted not to go with that flow, hence my degree is an LL.B. Our class was later offered the opportunity to change the degree to J.D. and get a new diploma (that as I recall cost $25). I suppose some of my classmates may have accepted the offer, but I declined because my degree was an LL.B. That was the end of the consideration. Later, as a speaker or member of a panel, I was introduced as obtaining my J.D. degree from UVA Law. I usually (but not always) interjected with a correction that I had an LL.B. and not a J.D. My resume always identified my degree as LL.B.; indeed, I think it would be false to claim J.D. now just because I could have but did not. I have to say that I am not even tempted to do that. I like my LL.B.
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