Comments on: What Justifies Originalism as a Theory of Interpretation? (A Reply to Solum) http://www.lawsocietyblog.com/archives/280 Notes from the intersection of law, society, technology, economics, and culture Thu, 20 Nov 2008 09:30:23 +0000 http://wordpress.org/?v=2.2 By: Northerner http://www.lawsocietyblog.com/archives/280#comment-3799 Northerner Fri, 15 Sep 2006 22:32:44 +0000 http://www.lawsocietyblog.com/archives/280#comment-3799 As a definitional matter, every factual issue could be transformed into a "normative" question. "Is the sky blue" could be transformed into, "Ought I to believe that the sky is blue?" So too, "Does the Free Speech Clause apply to non-verbal speech in a way that would encompass flag burning," could be transformed into, "Ought I to interpret the Free Speech Clause to apply to non-verbal speech, etc." I don't see how adding "Ought I" to the beginning of our sentences adds anything to the analysis here. Nor do I see why originalists bear any special "normative" burden here. Indeed, if anyone has a normative problem here, it's the judge who wants to exercise judicial review as to something that is not encompassed by the Constitution's text as it was adopted. Why *ought* anyone pay any attention to such a judge? As a definitional matter, every factual issue could be transformed into a “normative” question. “Is the sky blue” could be transformed into, “Ought I to believe that the sky is blue?” So too, “Does the Free Speech Clause apply to non-verbal speech in a way that would encompass flag burning,” could be transformed into, “Ought I to interpret the Free Speech Clause to apply to non-verbal speech, etc.”

I don’t see how adding “Ought I” to the beginning of our sentences adds anything to the analysis here.

Nor do I see why originalists bear any special “normative” burden here. Indeed, if anyone has a normative problem here, it’s the judge who wants to exercise judicial review as to something that is not encompassed by the Constitution’s text as it was adopted. Why *ought* anyone pay any attention to such a judge?

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