Does Originalism mean there’s one right answer? [No. 86]
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Does Originalism mean there’s one right answer? [No. 86]

October 16, 2019


Often interpreting the original public meaning
of the words leads us to conclude that there is indeterminacy. Words often leave room for vagueness, they
leave ambiguities. So texts can be indeterminate. Supporting an originalist interpretation of
the Constitution does not mean that we can’t recognize these indeterminacies, the question
is how to resolve those indeterminacies. The Founders themselves recognized that the
Constitution would be indeterminate. In Federalist 37, Madison has some beautiful
passages about the indeterminacy of language, but they also thought about how to resolve
these indeterminacies. The Founders most likely adhered to a concept
that we might call liquidation. They would liquidate the meaning, determine
the meaning of ambiguous or indeterminate constitutional provisions or a series of discussions
and adjudications. In other words, if there was an uncertainty
as to the meaning of the Constitution, Congress would debate on what that best meaning should
be within the realm of that indeterminacy. It still has to be textually or linguistically
plausible. The President could also weigh in on this
dispute and the courts could also weigh in on this dispute. And over time over a series of these discussions
and adjudications and deliberation, the meaning of the Constitution and its ambiguous parts
or its indeterminate parts would become fixed and determinate. So one example of liquidation, this practice
of liquidation, is the debate over the constitutionality of the Bank of the United States. The very first Congresses debated whether
Congress had the power to incorporate a national bank. It’s not specifically enumerated but it might
be necessary and proper to several other powers. Thus, this was indeterminate; it was unclear
whether Congress did or did not have this power. Well, Congress and the executive debated and
deliberated and concluded when all the constitutional arguments were on the table that Congress
does have this power and Congress enacted the National Bank. And James Madison, when he was President two
decades later, refused to veto on constitutional grounds the Bank of the United States even
though he as a representative had opposed it on constitutional ground. Why? Because he claimed that the question over
the constitutionality of the bank had been settled through the series of discussions
and adjudications that had occurred in prior Congresses and with prior Presidents. It’s true that often some originalists will
claim that originalism always leads to one determinant right answer. But once we grant the existence of indeterminacy,
it very well could be that originalism will lead to a range of plausible answers.

Only registered users can comment.

  1. Can Congress create a Bank ?

    Yes .

    Can Congress force people to use it ?

    No . The individuals freedom of association allows him/her to opt out of such an institution at his/her own discretion .

    Does Congress have the authority to invent the Federal reserve ?

    Yes .

    Does Congress have the authority to force people to use Federal reserve notes ?

    No . The authority to force someone to do something they do not want to do does not exist inside of a Valid Authority model .

    All other things being equal , would you choose fed notes over other available options ?

    Likely , No . But there are no other options . As per Congressional Mandate … Color of Law .

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