Montpelier. James Madison, Originalist, at home, VA.

Montpelier, Virginia. VA.
Violence of Faction;  Right of Conquest; 

How to preserve an original balance when times change.

Each framer of our constitution had to balance interests and principles. What they considered, and the context, is as important as the result. For James Madison, whose home was at Montpelier, VA, his context at home was rural, agricultural, see http://www.montpelier.org.  Yet in many ways he was a Big Government man, see http://www.americaslibrary.gov/aa/madison/aa_madison_father_1.html.  Government that is republican in form, a matter of governance by representation.   Here, Madison's Federalist No. 10, the paper that drew the balance point between the excesses of a majority in democracy; and natural law -- basic principles.   "Control the violence of faction."  See site.

1.  That angle of Originalism, however, favoring a strong government, is itself ambiguous because what happens when the representatives are corrupted, but their power is so great by that time that they are difficult to dislodge.   Any position over time becomes ambigous in applicaiton later, see https://www.nationalaffairs.com/publications/detail/the-founders-originalism.

• Are there any "original" texts that are not ambiguous in application  See, for example, the Declaration of Independence issue if minutia writ large --  the comma or a period at http://www.nytimes.com/2014/07/03/us/politics/a-period-is-questioned-in-the-declaration-of-independence.html?_r=0.    
• And Biblical texts are so ambiguous that major religions spend more time trying to figure it out and squeeze its oft-translated and mistranslated versions into their contrived ideologies (the better to control you with, my dear)  than they do with the vestiges of what might have been said by whom.

2.  Originalism is a mindset, a tool for preserving the interests that were protected at the time of a text. What happens when those early protected interests are o longer protected -- like slavery. The head swivels backward to see who benefited economically and socially at the time, and to what degree, if any, such should govern who benefits now.  What gives rise to that violence of faction.

•  Originalism and property.  A much-discussed ambiguity is property related, property defined: whether original circumstances and socially accepted beliefs that human beings shall be owned property,  should prevail as a mindset centuries later.  To some, the answer is simple.  Stay with the original?  If the people disagree, then appoint judges who do agree.  
• See President Trump's nominees to the judiciary: a political negative take, here, but it gets the point across -- Samantha Bee at   http://www.slate.com/blogs/browbeat/2017/09/28/samantha_bee_on_the_federalist_society_video.html.  The Federalist Society is the membership du jour that rules who becomes a nominee. 

3. Originalism on a positive note is also a  backcheck.  A factcheck. Is a later representation of words or a text accurate, or is it truncated, misleading, unfair in summation. A misquote by an Originalist , for example, would be a betrayal of Originalism itself. 

• So: Is one solution to start with the accurate statement of the original position:  but the contextualist would then say, hos to shape the interpretation of which sections to meet current needs and sea-changes in culture.

4.  Scholars identify two kinds of originalism: That of Antony Scalie' and the other of Clarence Thomas, see https://www.nationalaffairs.com/publications/detail/two-kinds-of-originalism. Summary:

Thomas :  Declaration of Independence teaches natural-law, and that is an authoritative guide for the judiciary.  'Judicial actiism' of the right.

Scalia, Judicial restraint comes not from the tradition of natural law, but from hewing to the written text of the Constitution, established views of founders, and statutes making those ideas operative.

All of those positions are choices, not solutions.  None remove the foundational ambiguity: what of application to other times. None of that removes ambiguity. And so to former mayor of NYC, Rudy Giuliani, 2007, speaking to the Federalist Society, See   http://www.presidency.ucsb.edu/ws/index.php?pid=94604 . On the Scalia side. Who ultimately is served, which sectors of society.   The Federalist Society Board of Directors:  No women, see https://fedsoc.org/board-of-directors.  Somebody go vet.  The background picture to "background" -- all white guys. The medium is the message. See https://fedsoc.org/our-background

Federalist Society:  Proudly begun in the McCatrhy era.  Ongoing dedication: See The Paradox of Professionalism: Lawyers and the Possibility of Justice, ed. Scott L. Cummings  2011  at 221 ff.  Scroll down to the chapters available;  At Ch.6, How and Why do Lawyers Misbehave.  A professional credential does not neessarily mean ethical behavior.

5.  Islamic originalsm. Amish originalism (read When the English Fall by David Williams 2017, review at https://www.nytimes.com/2017/08/31/books/review/when-the-english-fall-david-williams.html   Choose among many choices: militant, vengeful, sharing, and tolerating -- but with areas of firm exclusiion, counterig the altruism.   All originalism.

6.  Articles of Confederation.  Here is an example of governance by mere majority, an "excess" of democracy -- where mere majority rules,. How easy it is to manipulate what majority gets to vote, and based on what information.  See the criticism of  Eldridge Gerry,  George Mason, delegates (who ultimately opposed the Constitution -- as being too responsive to the people, and not protecting natural rights enough.  Both agree on principle:  Too much democracy fails to safegard the rights of the people; but then, figure out where to draw the line, See   https://www.nationalaffairs.com/publications/detail/the-founders-originalism

Democracy's excess:  Alwys an issue.

7,  Islam is not the only religion with its extreme originalists, its ultra-conservatives who accept no changes from earliest practices and beliefs, who espouse absolute dedication to their own selected authorities' framing of required ideology systems (often developed long after a Founder's words).  That extreme originalism is also part of western Christian sects, without public beheadings but threats and killing of dissenters like Dr. Tiller, approved by militias and others.

8.  For a Trump, what matters is not any theory at all, but whether the exploitation being applied furthers the interests of the interest group.  It is fine to take advantage of one people, in order to better ones own.   An espouser of the violene of faction.

That makes Trump not an originalist at all in its original sense of balance between excess and rights,  except in the Confederacy sense of majority wins -- mere majority, no matter how you manipulate it, wins by the vote.  " *** After all, who can blame a country for taking advantage of another country for the benefit of its own citizens***  "  See   https://www.theguardian.com/world/2017/nov/09/donald-trump-china-act-faster-north-korea-threat  The operative word  clearly is "citizens".   Keep people from becoming citizens., so they have no voice, and the resulting majority that is not a majority wins.

Originalism as a principle of interpretation of otherwise ambiguous (perhaps) declarations of a founder or founding text makes it possible to kill or persecute rivals, nonbelievers, nonconformists, read heretics, apostates, virtually at will because the accepted authority declares such to be the will of a deity; or some deified Founder. Originalism can be religious, or secular. Originalism as justification for suppression of change is Originalists in the West followed the same mold, but beginning some 500 years before Islam began the march.

Violence of faction when just getting the job done counts more than rights of people. Right of conquest.  Charlemagne beheaded 4500 Saxon prisoners of war in a day and night at Verden, now Germany, in about 782 CE; the dominant Western church institution sect forced conversions on pain of death, destroyed works of thinkers coming to different conclusions from texts, conducted centuries of crusades even against other Christians, inquisitions, demeaned women, abuse is Biblical, Ya-da.

That is the rub.  This is now, and our own religious extremists continue to think they are so right, with text interpretations that stem from somebody's believed revelation, The persecuted Yazidis see CAIS site, others in some out of the Abrahamic Old Testament and following tradition.

Compare this anti-heresy activity, and drive for ideological dominance, however, with the far more









(1)  http://law.fordham.edu/registrar/23595.htm/  Please put that course online, for a fee, of course.  
(2) http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism/
(3) http://www.historians.org/about-aha-and-membership/aha-history-and-archives/gi-roundtable-series/pamphlets/what-is-propaganda/defining-propaganda-i