Wednesday, January 18, 2006

Original Intent versus Original Meaning

David Calvani offers another correction:

I saw that you posted my note to you on your site (@ I was greatly surprised when I saw "David Calvani on the Establishment Clause" in the previous posts column. I wish you had e-mailed to let me know you were going to do this; I would have seen it sooner.
Regarding that post and the post titled "Clearing up some confusions" (, I'm afraid you are making a mistake.
My objection to the federal courts' current establishment clause jurisprudence is not based on "original intent." My objection to this and other bits of judicial activism are based on original meaning. (As are those of most critics of activist rulings.) Every text has a meaning. That meaning does not magically morph over time. And no amount of intent on an author's part can change what he wrote into something he didn't write!
Imagine if someone a week, a year, or even a century from now read your various posts on your website and said "Since society and the use of language has changed since Victor wrote these posts, the meaning of these posts has changed." Such an attitude would destroy your writing. Applying this attitude to legal texts destroys the law.
When attempting to discern the meaning of a law, we must look to how the words and phrases within it were used in the legal parlance of the time when it was enacted. The "Lemon test" has nothing whatsoever to do with what the phrase "an establishment of religion" meant in the legal parlance of the time when the first amendment was written and ratified. The judges who created the Lemon test knew this as well as I do.
But even if the Supreme Court's Lemon test jurisprudence wasn't itself judicial activism, applying it to the states is still a power grab. The immunity created by the establishment clause is entirely for the states. And that immunity was not repealed by the 14th amendment. The 'justices' of the U.S. Supreme Court have removed authority from the citizens and elected legislators of the several states and placed it into their own unelected hands. That's tyranny, pure and simple.

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