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Bruce Boyer
I caiught Jack on Lawrence O'Donnell and once again enjoyed the hell outy of seeing him but let me add one note.
Originalism has at its heart an unspoken notion that language is somehow so fixed that we can somehow infer and then apply the original texts of the Founding Fathers to the present day. Jack covered all that in Original Meanings quite well.
The justices are lawyers and I am not, so I won;t try to unravel their legal logic. But I, like Jack, am an nhistorian and law is merely a segment of society. I wrote my dissertation on eighteenth-century England, so I know a lot about what people thought back then, so here goes:
--The Founders were Creationists, as Mike Pence once said, but they had no choice because they had no idea how old the earth was, so it was easy to believe that the Genesis description of creation was somehow accurate. They knew nothing about rthe forces that create earthquakes, for example, because it was not until geology as we know it was created in the mid-nineteenth century when the first dinosaus were uncovered in the 1840's. Jefferson, Madison, et al. would have benn gobsmacked when learning that the planet is three billion years old and especially by the seeing the bones of Tyrannasaurus Rex.
-- Along the same lines, the Fathers had no idea about the diversity of life on Earth. When Linnaeus invented modern taxonomy in the mid-eighteenth century -- the system we still use -- he thought there were maybe 8000 species of plants and 8000 species of animals in the world. Since his time, the system has been modified to take in the fact that there are roiughly 240,00 species of vascular plants -- we'll not even talk about the millions of species of bacteria, fungi, virusues, etc. -- and some 980,000 species of just beetles.
--You'll are surely remember learning that medical tratemnet in 1789 usually consisted of bleeding patients to remove the "bad" blood, a method that probably killed as many patients as it might have cured. Even Edward Jenner, who created the smallpox vaccine in the late eighteenth century had no idea about the mechanism that made it work. Humans did not know what caused infectious disease until Pasteur did his work in the mid-ninteenth-entury and we learned about the invisible orgnaisms at the heart of smallpox, tuberculosis, et. all.
--The Founders also had little or no idea about ecosystems and the interdependence of life forms. That idea only came about 1848 when Darwin published ther Origin of Species and even then his ideas were so radical that they were outright rejected in many quarters, as they still are today even though biological science has time and again verified his ideas.
--The Founders also had no idea of what we now call psychology. They figured that human nature was ordained at birth -- indeed, the very concept of "childhood" did not exist for another century -- and that there were simply good people and bad people, the latter being a scourge that needed to be controlled. As a result, In eighteenth-century England, there were well over a hundred capital crimes, so public hangings were a regular occurence.
--My point is that the ideas of Darwin, Marx, Freud and Einstein -- none of which exited when the Constitution was written -- have become solid, recognizeds parts of human knwoledge. You may dislike what Dawrin or Marx wrote, but the fact that you choose to ignore them only affirms theyr power. We cannot unrung the bell of human knowledge, and so much has changed since 1789 that tyring to discern the Founding Fathers' "intentions" is, to my mind, a fool's errand.
Jack may disagree but that, too, is nature of intellectual life.
Bruce
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