Posted by: captainfalcon | December 12, 2012

The Originalist Gliberati

It’s said that there came a time when Hugo Dyson, who belonged to the same literary group as JRR Tolkien at Oxford, would writhe about on the floor moaning “My God, no more elves! No more elves!” when Tolkien would produce yet another draft chapter of The Lord of the Rings.  

I feel the same way about Andrew Koppelman’s new application of originalism.  “Does an originalist reading of the Thirteenth Amendment support a right to abortion?”  My God, not another exercise in exegetical virtuosity by a legal thinker too talented to be a mere ironist.

Text and history are indeterminate, no doubt.  And Balkin has taught that a gifted legal rhetorician who consciously, but without ever breaking character, pursues a motivated reading of the historical source material can craft a publishable progressive originalist reading of the Constitution that is tolerated (or even embraced) by the relevant professional community — legal academics — in part because it is gifted rhetoric, in part because it skewers the right-wingers, and in part because, maybe, it will actually help promote good results.

But it’s gone too far in two respects.  First, it should never have become a cottage industry.  A few exemplars of the genre — Balkin’s original trifecta — rather stunningly make the important point: originalism is capable of manipulation; originalism is political; its claim to objective authority (the only claim it ultimately has going for it) is bogus.  Piling on adds nothing of intellectual worth.

Second — a problem, distinctively, with Koppelman’s essay — glibly trying to shoehorn abortion rights into the Thirteenth Amendment by arguing that its original meaning covers them is reflective of a stunted moral sensibility.  To be sure, any possible interpretive argument to the contrary can be met by the formidable array of technologies the gliberati have developed or co-opted to make history cohere with their policy preferences.

 Argument: Nobody intended the Thirteenth Amendment covered the right to abortion; Response: intent is inapposite; what matters is the original meaning.

Argument: Okay, but nobody would have understood the Thirteenth Amendment to cover the right to abortion. Response: what matters is the meaning understood at an appropriate level of generality — did they understand the Thirteenth Amendment to embody a principle that extends to the right to abortion? 

But I am not making an interpretive argument here.  I am making an ethical one: it is not appropriate to transform the Thirteenth Amendment from a symbol of our repudiation of chattel slavery into a political weapon to promote even laudable contemporary political ends.  The Thirteenth Amendment should be approached reverently.  It should be fenced off from those parts of the Constitution where the ironists can play.  Glib readings of the Thirteenth Amendment are disgusting and wrong.

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