I've come to believe that the most important piece of "wisdom" I've acquired in my five and a half decades can be reduced to this sentence (and maybe a couple footnotes): "No ism has all the answers." That is, there is no belief system, school of thought, or theory that can always tell you the best thing to do (and that includes David Giacalone's antiismism).
- This is a blend, I guess, of philosophical/scientific/ practical skepticism, with my own brand of agnosti-cookbookism: At times, given the ingredients available or the guest list, you just can't blindly follow the recipe to get the best results, no matter who wrote the cookbook.
Whether the topic is life, law or 'ligion, I naturally raise an eyebrow when told that a certain approach is always the best or is the only appropriate way to see or solve a problem. The world is simply not that simple. I say this, in response to Ken Lammers' post here at C&F today about textualism vs. original intent. Ken points to Jonathan Rowe's modestly-titled post Textualism is Superior to Original Intent at Freespace. Jonathan denouces "original intent types" who want to apply and ply their approach on the Free Speech clause.
I agree with Rowe that one can use the cloak of original intent to distort the meaning of the Founders. But, even as a newcomer to the text/intent debate, I must point out that language is always used in context, and language changes meaning over time, so that looking at original intent of the speaker/author is at times crucial to doing their will.
- Rowe insists that "make no law...abridging the freedom of speech" can only mean that no law may be enacted that restricts speech. But, I'd like to know why the drafters used a vague word like "abridging." Did "abridge" have a special meaning in the late 18th Century along the Atlantic seaboard of North America? Shouldn't we want to know?
- More important, I wonder why they didn't just say "abridging speech." Instead, the drafters seem to be protecting a "freedom of speech," making the curious mind at least wonder if perhaps "freedom of speech" is less than "all speech," and perhaps is contrasted with "license to speak whatever one wants." If so, we might just have to look a bit deeper to know exactly what the authors meant.
Just as I believe that "federalists" use the term rather loosely, depending on the outcome they desire, I believe both "intent types" and "text slaves" can skew their analysis in ways that distort the intent of our Constitution's authors (even if we assume that every supporter of the Bill of Rights gave the words the same meaning!). What would Freespace do with words like "reasonable search"? How about -- in an analogous context -- "thou shalt not kill"? Divining original intent is very difficult, but so is saying what any particular words absolutely meant two centuries ago, or today. The interplay of text and intent differs with every Clause of our Constitution. No one has all the answers.
