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Thursday, May 21, 2020

Ogden v. Saunders and Originalism

I particularly like how Justice Washington began his constitutional analysis in Ogden:

I come now to the consideration of the question, which, for the first time, has been directly brought before this Court for judgment. I approach it with more than ordinary sensibility, not only on account of its importance, which must be acknowledged by all, but of its intrinsic difficulty, which every step I have taken in arriving at a conclusion with which my judgment could in any way be satisfied, has convinced me attends it. I have examined both sides of this great question with the most sedulous care, and the most anxious desire to discover which of them, when adopted, would be most likely to fulfill the intentions of those who framed the constitution of the United States. I am far from asserting that my labors have resulted in entire success. They have led me to the only conclusion by which I can stand with any degree of confidence; and yet, I should be disingenuous were I to declare, from this place, that I embrace it without hesitation, and without a doubt of its correctness. The most that candor will permit me to say upon the subject is, that I see, or think I see, my way more clear on the side which my judgment leads me to adopt, than on the other, and it must remain for others to decide whether the guide I have chosen has been a safe one or not.

One of my objections to the practice of originalism is the degree of certainty expressed by many who apply that approach. They know for certain what the original understanding more often than can possibly be true. Bushrod's reasoning was originalist in a way (as I'll explain in later posts) but with a far more modest and realistic view of what we can know. And remember--he was a member of the Virginia ratifying convention in 1788 and close to George Washington. If anyone could have claimed confidence about what the intent of the framers was, it was Washington. But he did not. Food for thought.   

Posted by Gerard Magliocca on May 21, 2020 at 07:39 AM | Permalink


Beyond the senselessness of the so called : originalism, it is worth to note, that one judge should be modest indeed ( intellectually, and personally ) yet, one must distinguish, between approach, and results:

In his approach to legal issue, modesty is warranted, in order to deal with complicated issue, bearing different angles of different parties and judges ( of lower courts, and sitting with him). That is good. Yet, when reaching conclusion, well, that is a different animal. Here he should be decisive and determined, as if, he does bear the only correct solution. Why ? Because, he needs to solve problem: Clearly, conclusively, and guide lower courts and other officials, how to treat from now, certain legal issue. So, it must be effectively:

Guiding, conclusive, clear, effective, and practical. Otherwise, no certainty, no stability, but mess all around. That can hurt trust in judiciary.


Posted by: El roam | May 21, 2020 9:28:07 AM

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