Some thoughts:
1. Law is a set of codes & standards of conduct enacted through speech.
2. To be effective, the law must have legitimacy; to wit, people must recognize the validity of the courts & the state in promulgating & enforcing the laws. Of course, force becomes the final arbiter, but every regime needs to economize on the use of force.
3. In order for a system of laws to be effective, they must be seen as (in some measure) legitimate, just, & predictable (non-arbitrary).
4. Courts at all levels write opinions or speak from the bench seeking to justify their decisions (at least in American courts). All of these statements seek to justify a decision, from small claims to the Supreme Court.
5. Decisions must be justified by reference to the evidence in the case (testimony and non-testimonial exhibits) and application of the law(s) to the particular case; i.e., what is the appropriate law to apply.
6. Our laws come from acts of the legislature (Congress, state legislatures, city councils, etc.) and from judicial precedent (common law).
7. Every decision requires an “interpretation” of the law to the circumstances; sometimes it's quite simple because the law (precedent or statute) is quite specific, and sometimes the law is frustratingly vague. But each decision requires an act of interpretation and application of the relevant law.
8. And while there are some principles & maxims about how to interpret & construct the laws, they are few & not often binding; and this is especially so in matters of constitutional law.
9. In arguing a legal position, a lawyer or judge is constrained only by the rules of sound rhetoric. The judge or lawyer can call upon precedent, logic, experience, common sense, intuition, or other considerations that the decision-maker (the judge or jury for the lawyer; the parties & the public for a judge) considers legitimate and persuasive.
10. The consequences of a decision always play a role in the decision-maker's final decision; sometimes those consequences are acknowledged and apparent; sometimes consideration of the consequences is sub-silentio. And consideration of the consequences goes beyond the parties to the lawsuit and considers the public and posterity as well. (E.g., What precedent does this set?)
11. “Originalism” in constitutional law is an interpretive and rhetorical conceit. Originalism seeks to fix the meaning and application of a constitutional provision to the meaning and intention claimed to have been held by the original drafters of the provision. In some instances, there is no contention about such a provision; for instance, in order to qualify to serve as president, a person must be at least 35 years of age and born in the U.S. The statement of this provision is precise, concise, and utterly unambiguous. As to “right to bear arms,” “due process of law,” and “cruel and unusual punishment,” to take three familiar examples, the issue becomes more complex.
12. My preferred argument against an originalist-only interpretation and application of the more ambiguous terms in the Constitution (e.g., “due process” and “cruel and unusual punishment”) is that the Framers—and those who later amended the Constitution—were not so foolish as to believe that their words were not open-ended and therefore would need constant interpretation and application. Would they not have known and even encouraged those coming after them to revise, refine, and further elucidate those concepts? Indeed, would they not consider posterity utterly foolish if posterity did not continue the project of building and refining a constitutional order? The ink was barely dry on the original Constitution before Madison (its primary author) drafted a bill in Congress to amend the document (the Bill of Rights). And Chief Justice John Marshall in the early 1800s went about refining and elucidating the Constitution through Supreme Court decisions. To think that the Framers and their progeny, especially the Reconstruction Congress that drafted and sent to the states the 14th Amendment, wanted us to freeze their concepts in time in an insult to those individuals, an unmerited insult. (The 14th Amendment applies “due process” and “equal protection” provisions to the states.)
15. In fact, for law in general, and for constitutional jurisprudence in particular, there is no definitive mode or method of interpretation and application of constitutional provisions. The standard is one of persuasiveness within the legal and political community and with the public, as well. (The length of Justice Alito’s majority opinion in Dobbs v. Jackson is indicative of the importance and difficulty of justifying the Court’s decision to overrule Roe and Casey.
16. Originalism is a fig-leaf that seeks to conceal the pre-determined result position in the case of Dobbs v. Jackson. Overall, originalism is a tool that works to roll back the expansion of constitutionally guaranteed rights established by the Supreme Court in the 20th century.
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