Re: Scalia's Originalism

[Malla Pollack]

As a non-originalist, I suggest that the only coherent originalism theory is the textually (aka original meaning) theory which is well discussed in Randy E. Barnett, An Originalism for NonOriginalists, 45 Loyola L Rev. 611 (1999).  This version of originalism renders the most perplexing of Prof. Lipkin's questions irrelevant. Malla Pollack Visiting, Univ. of Oregon, Law 541-346-1599 [EMAIL PROTECTED] ----- Original Message ----- From: Robert Justin Lipkin To: [EMAIL PROTECTED] Sent: Friday, August 01, 2003 3:53 PM Subject: Re: Scalia's Originalism        As a non-historian and a non-political scientist, let me asks the following questions: (1) Does originalism presuppose the Framers held one determinate view regarding constitutional meaning? Does it permit the Framers' holding several different views? (2) How does one establish such either view? (3) How do historians (and political scientists) deal with the problem of ascertaining "collective intent," a problem that Dworkin and more recently George Fletcher, as well as many others have emphasized? (2) Do those supporting original intent or original understanding appreciate the enormous commitments to differing philosophies of mind involved in either theory?  (4) How do we ascertain the intent---subjective or objective---of a particular Framer? (5) How do we ascertain the public meaning of a critical political or legal term even in contemporary society let alone in the past? and (6) To what are we referring when we make claims that the original intent or understanding of a constitutional provision is X? (7) What evidentiary techniques are required to substantiate such claims? Apologies if some of these questions overlap. Bobby Lipkin Widener University School of Law Delaware