I was watching the News Hour tonight and in their segment on the SC nominee, Gorsuch, they showed photos of him doing outdoorsy stuff (trout fishing in a beautiful stream was one example) and it made me wonder if someone with an originalist bent and an appreciation of the outdoors could reconcile those two ideas. I tried some Google searching but found only explanations of originalism, nothing relating to environmental issues. Has Gorsuch ruled in environment cases?
I’m a forklift driver so my knowledge of legal theory is a little sketchy.
Well a little more searching turned up this and it kind of answers some of what I was asking but I’m going to post this anyways and would be glad to read Doper opinion on this.
An originalist argument can be made for anything. The basic idea of originalism is that you don’t just read what the text says; you imagine what the person who wrote the text was thinking when he wrote the text. Then you claim that the thing you imagined is what the text actually means.
It’s every bit as valid as any other belief that rests on a foundation of psychic powers.
Textual originalism attempts to figure out what the words mean at the time, and how people would interpret it. And all originalism seeks to find proof of what people thought it meant by using past history.
The issue of interpeting existing laws seems straightforward in this. The issue I’d be concerned about is whether environmental protection is a power the government has, if one reads the constitution in an textual originalist way.
I’d hope Bricker would weigh in, and correct any mistakes I made in the above.
Why are you assuming that someone who enjoys fishing gives a damn about the environment? My grandfather loved to fish; I don’t think he gave a second’s thought about the shrinking ice caps or the ozone layer.
I’m curious where in the constitution is the federal government given the power the regulate the environment? I would suspect that an originalist would point out that since the federal government isn’t empowered to do so that environmental regulations would need to come from the states.
In as much as a significant proportion of air and water pollutants are the result of industry involved in interstate commerce much environmental policy could squarely hang its originalist foundation on the Commerce Clause. Not really a hard call.
I feel there is a difference between textualism and originalism. Textualism essentially says you should stick to the words that are written down in the text and what they mean. Originalism essentially says you should stick to the words that are written down in the text and what the writer thought they meant.
The first method requires a copy of the text and a dictionary. The second method requires telepathy and time travel. Or the ability the claim you can know what somebody was thinking two hundred years ago with a straight face.
Originalism is the notion that the meaning of the constitution is fixed at the time of enactment and does not change over time (except by amendment). Within originalism, there is a split on how you determine that meaning. “Original public meaning” (which is, I think, a form a textualism) asks what a reasonable person would have understood the text to mean at the time. Original intent asks what the drafters intended the text to mean.
Originalism is (essentially) limited to constitutional interpretation. In legislative interpretation more generally, there is a split between “textualism” and “original intent.” I tend to agree that efforts to determine the intent behind a particular enactment is misplaced (either because it requires “telepathy” or because I’m not convinced the collective intent is a real thing). But that’s a different question than what originalism seeks to answer.
where did you get that idea? we can know alot fo what the framers were thinking because its written down. sometimes in different drafts, sometimes in descriptions of the debates over certain things, sometimes in letters written back and forth by the framers discussing just what they were thinking.
not every thought was recorded, naturally, but telepathy and time travel are not necessary.
You’re still guessing what the writer was thinking. If, to use one of your examples, a writer changed the text from an earlier draft, you have to guess why he did it. Maybe he realized his original idea was flawed so he revised it in the final text. Recovering that earlier draft and assuming it reflects the writer’s real intent would be mistaken.
The best way to avoid this kind of guesswork is to just stick to the actual words that got written down and enacted as law. That was the version the writer wanted in the Constitution.
youre correct, but comparing those two drafts can give you a clearer idea of why he chose the words he did. or comparing the drafts of opposing thinkers gives you an idea of the compromise they came to.
ah! but, sometimes those words have more than one meaning, which one is right? those words were written over 230 years ago. meanings change, customs and mores change. do we want the constitution to mean exactly what we think it means today without any consideration of what the framers were trying to accomplish when they wrote those words?
Correct, but words, and phrases change meaning over time. It’s important to know what they meant, necessarily not what some claim they meant, centuries later. “Well Regulated” is a good example, it had a completely different meaning in the 18th century than what modern politicians allude to with respect to the 2nd amendment for example.
I guess I’m thinking the framers couldn’t have imagined polluting a river to the point it catches fire, blasting the entire top of a mountain until the whole thing can be bulldozed into the valley, over fishing the ocean until certain species are nearly extinguished. To them, I’m thinking, the earth was an inexhaustible supply of resources. How could they have imagined the pressures an ever expanding population could impose on the finite resources of the planet. How could they have imagined the build up of gasses in the atmosphere to the point of changing the climate of the entire planet? Is there some genius to their crafting of the constitution that can be applied to come up with solutions to environmental pressures?
Okay, I’m going to step back from my views on the value of originalism and attempt to apply it fairly to this issue. But even in that, I don’t think there’s a case here.
My understanding of the founding fathers and the society they came from is they didn’t regard untouched nature as a valuable thing to be preserved. They, in fact, held the opposite view. Nature to them was something that should be taken under enlightened human control and made useful for human purposes. To them, a forest was something that should be cut down and turned into lumber while crops were planted on the land where the trees had been. The wilderness to them was a problem that needed to be fixed.
The modern concept of preserving nature in its original state developed much later during the Progressive era. By that point (around the beginning of the twentieth century) enough of the country had been settled and developed that untouched nature was beginning to be seen as a scarce commodity.
i think youre somewhat right about that. but, they also believed in eminent domain; that the land was there for all citizens to use. i think an argument can be made that if its not protected (from overuse or pollution) then its no longer available for general use.
and they also believed the govt owed its citizens protection, including protecting their health. and clearly pollution is detrimental to our health.
