The New Originalism, Online

... I just wanted to mention that I've got some lectures up about the new originalism (with slides). Click the picture to see the slide or click "Full Size" to hear it talk.

One of the things that I think is key in this area is not letting these people have their language. It's a blatant lie (orthodoxy) to tell students that old originalism is about "framer intent" and new originalism is about "original meaning." What must be taught, instead, is that this is merely a way of speaking -- and a contrived one at that. Truth is, "new originalism" amounts to four simple (and confused) philosophic positions:

1. That classical legal thought should be re-imposed ("original methods originalism")
2. That the Constitution is really a toast to an old society (hegemony)
3. That plain language harbors fixed substantive content (misinformation)
4. That the Private Language Thesis is true.

Note that 3 and 4 are terrible dogmas about language. I couldn't believe my eyes when I saw Stanley Fish, Keith Whittington and Larry Alexander endorsing a private language thesis. And Whittington did so under the strange belief that Wittgenstein supported him (?), something that became a terrible falsehood in some circles, as evidenced by John O'Neil's 2005 book (p. 195). How these scholars came to see Wittgenstein as believing that language meaning was ultimately the secret intention of an author who gave life to barren marks, I will never understand. It was always culture (a learned orientation) that gave life to marks. Anyway, that has to go down as one of the worst intellectual mistakes ever made by a an entire community of scholars (proponents) for well over a decade.

And so, what we have here are two very false claims about language, and two other claims (1 and 2 above) that are so "out there" as to be horribly incongruent with current orientations. Please don't tell your kids that the new originalism is about an "original meaning." Tell them the truth: it's about 4 terrible theses about language and jurisprudence.   

Regards and thanks.