My post on Justice Alito’s concurring opinion in Evenwel was a critique of his jurisprudence, not his vocabulary. Some judges and academics claim to be able to determine the “original public meaning” of words that were written over 200 years ago, as though that were something easily accessible. In fact, we end up with law office history, produced by the research of clerks – almost none of whom are trained as historians – who trawl through selected sources until they find something they can use. To the contrary, and as a historian, I would say that “original public meaning” is at best elusive, usually ambiguous, and frequently unobtainable – especially when research is confined to the relatively short period between the certiorari grant and the opinion.
This is well illustrated, I think, by Alito’s reference to the Solicitor General’s, and the majority's, “meretricious argument." What is the original public meaning of “meretricious,” and how might it be interpreted by law clerks fifty or one hundred years from now? Were they to consult 2016 dictionaries, they might well conclude that Alito meant it as a biting insult, comparing his colleagues to prostitutes, rather than as a mild rebuke about the superficiality of their position.
Even from today’s perspective, there is no single definitive meaning of the word. If one were to call a political candidate meretricious – and I am not naming names – many would understand it to mean whorish. The same word applied to a SCOTUS opinion means something quite different. Discerning the “original public meaning” of the term would be futile because it is highly variable and contingent.
As I wrote in my original post, I realize of course that Justice Alito intended the most benign meaning when he wrote his concurrence. But that is precisely the problem with claims to have discovered original public meaning in the words of a statute or the Constitution – they are inherently subjective and contingent.
Arguments to the contrary are meretricious, or perhaps not.
And we have a winner for the "original post least deserving of a follow-up post" award!
As to your purposes, I think readers might have been confused by the title of the original post ("Does Justice Alito Have a Dictionary?") and the fact that you pivot only near the end to "a larger issue . . . than simply Justice Alito's vocabulary."
If I were Justice Alito, I probably would have avoided using "meretricious." Still, I doubt that anyone trying to explore the original public meaning would doubt his meaning, and there must be better examples each Term. But I think the larger issue, as you put it, is not original public meaning as a general enterprise, but whether the rhetoric in Supreme Court cases is really like the Constitution or statutes. The latter tends to avoid "argle-bargle" and "jiggery-pokery," and also tends to be the result of collective drafting, deliberation, and consent. That is, while all language and usage involves subjectivity and the potential for ambiguity, a Supreme Court opinion is closer to an exercise in simple authorship and publication than these other enterprises. I tend to agree with your concern but doubt the value of this example.
What a crock! Nice try, Steve.
You are bound by the "original public meaning" of your first post, whether you now claim that you intended to say something else or not.
See how that works, Steve? Your new, twisted version of the reasons you said what you said doesn't wash with anybody. The subject of your post was quite clear.
If you wanted to write a post critiquing "original public meaning" theory then why didn't you write such a post? If that was your "intent," you didn't do a very good job … agreed?
Would you have folks bound by the unclear, obscure (and likely bogus) "reasons" behind law as poorly drafted as that post now appears to have been (by your claim, not mine), as interpreted not by "lawyers" (as Scalia as claimed to be) but by "experts," for instance, like you?
Do you think such a process would be fair?
Professor Lubet:
It's real simple. Originalism means guns. Period. End of story.
I used to really enjoy this blog as it used to be a community of serious people. It's sad what you have allowed to happen to it. Please dump Lubet.
GUNS, originalism and the constitution is analogous to that iconic NYC skyline poster that shows it as the center of the nation with Chicago, Dallas and LA as tiny, incidental dots on the landscape. One can easily picture a huge GUN with the 1st, 4th and 6th Amendments somewhere off in the far distance…. "Women, Muslims, Patriot Act, Voting/Slavery…..who cares. ITS THE GUN BABY. THE PISTOLA." Whoa, Cowboy Nation. Ammo Sale at Walmart. That fellers and lady is what Originalism is all about.
I have been highly critical of Steve's posts, but I wouldn't go so far as Farnsworth.
It may be that the AG affair has convinced Steve that his role is to scrutinize and demolish others (almost always persons who are obviously his political "enemies"). He is almost always attacking someone (and thus, has no standing to complain when others scrutinize his efforts).
The problem is that Steve's comments often go not for low hanging fruit, but take on small blemishes of increasing insignificance. These attacks often either misstate or exaggerate premises and background facts in order to come to come hyperbolic conclusions about his "enemies." There is no effort to be objective and fair, and really little effort to go deeper than the most superficial take on a trivial issue that somehow is supposed to smear someone whose politics Steve doesn't agree with.
This sort of "tabloid scholarship" is perhaps more common on blogs, but, as stated above, this blog has had (at least sometimes) an overall flavor of something worth reading and not just an outlet to attack Republicans on often bogus grounds (the Alito post being a prime example).
Too often, Steve is lowering the tone and that substance. I, for one, feel sure he can do better.
Steve, why not consider taking a break from the smug, condescending attack mode and start discussing topics of actual academic interest?
I second the motion to block Lubet. He's rapidly undermining the integrity of this blog.
Steve's posts on that controversial appointment a while back were at least thoughtful, if not also controversial. I thought he handled that issue with more care and mindfulness, and his posts provoked a lively discussion.
Steve, once again, one hopes you are taking this all in. It won't hurt you to evaluate persons (even those with whom you are politically aligned) fairly. TRY IT! You'll like it.
Boys, I don't see anything partisan about these posts. Did you forget, the legal system is ADVERSARIAL? Language is always being parsed. Rabbis do it at synagogues during sermons, preachers preach the gospel, I advise my clients and judges make findings. anon and AnonProf are the same poster. The squared patterns prior to their posts are exactly the same; the blue geometric pattern. I know enough about computers to manipulate that. You failed to change the email address which would generate a different pattern. You goofed fella. The emperor has no clothes. I caught you with your pants down. It is really disingenuous for you to "Second" the motion to "block Lubbet." These posts challenge my thinking and take me back to law school. A reminder why I am defending three bill retail thefts.
Captain
AnonProf has different icons next to his/her posts above. AnonProf definitely isn't me. Nor is "Ed" or "Farnsworth."
Now, take a deep breath, and notice the icon next to this post.
Hint: It has nothing to do with email addresses!
Keep digging…
I'll second the motion and I have a different squiggly think next to my name.
No clue why there's the same picture, but I can assure you that I've only used this handle on this post. Glad others agree though that Lubet should go.
Instead of focusing on the word-choice, how about some analysis on Justice Alito's ideologically driven anti-democratic rejection of the one-person, one-vote argument that he found to be 'meretricious?' Course some people would probably cry at that even more than Alito's wife did during his confirmation hearings.
Cent
Nice post, as usual. I agreed with the first sentence. But then, you had to go there.
I know, I know. The wife deserves nothing from you. Everyone with different politics from yours deserves nothing and should be ruthlessly and mercilessly eradicated. Then the world would be good and pure again, and all would be well. Your nastiness is just because you are so righteous and they are so evil.
Zealotry is what is making America great again!