Tag Archives: Living Document

On Originalism and Omelets

Q: How many eggs do French people like to have for breakfast?

A: One is an oeuf.

Hilarious!  That’s about the quality of Jonah Goldberg’s recent posting at NRO, titled “Close Encounters with a ‘Living Constitution'”.

Here’s the setup.  Goldberg orders an Arizona Omelet at the diner, the Red Flame.  But the server brings him a bowl of oatmeal.  When Goldberg objects that he didn’t order this, the server replies that he, in fact, did order the oatmeal.

“This is oatmeal,” I’d say. “The menu says that the Arizona Omelet has cheese and onions and jalapenos in it. It also says it’s an omelet.”

Waitress: “Well, we here at the Red Flame believe that the menu is a living, breathing document that changes with the times. Oatmeal is healthier than an omelet, and we feel that people should eat more of it. So, we only serve oatmeal, but we call it by different names.

The point, as we see, given the analogy, is that taking X as a ‘living document’ is just to impose one’s will on the document.  Words don’t mean what they mean at all.  Or they mean what we just want them to mean.  And here’s how Goldberg sees the plausibility of this line of thought:

That’s more like how the doctrine of the “Living Constitution” works in real life. A judge makes a small leap of interpretation that seems reasonable — say, replacing onions with shallots, which after all, are a kind of onion. Then the next judge makes another incremental hop in interpretation. And then another. And another. Until eventually the waitress brings me the head of Alfredo Garcia

So Goldberg’s reasoning is that because it happens in ‘incremental steps,’ there will be no constraint on how to read the Constitution or a menu, for that matter.   But the problem is that there must still be a ‘reasonable interpretation’ at each of these steps.  Red onions for shallots… and note what makes it reasonable is that they are kinds of onions.  (And note that it’s a replacement, not a re-interpretation.)
But here’s the big lie to the reasoning — none of the ‘reasonable’ replacements actually end up with what Goldberg takes as obvious — that there’s a series of reasonable interpretations of ‘omelet’ that yields a bowl of oatmeal.
Goldberg closes by noting how he sees the dialectical situation:
There are some issues where I think liberals have a sincerely held, rational, and legitimate point of view that I simply disagree with. But the doctrine of the Living Constitution is not one of them.
You’ve got to be freakin’ kidding me.  At no point in time does someone who cares about individual rights thinks that there would be a problem with the dead hand?
And so, we see a fallacy double-dip.  First, there’s the faulty analogy between the situation of Living Document interpretation of the Constitution and the Red Fire Diner’s omelet, and the case Goldberg makes for it as a slippery slope.
The ur-fallacy here is the slippery slope, since reasonable interpretations don’t have the all-too-easy-slide to voluntarist re-writing, the slope isn’t slippery.  So the two cases aren’t analogous.  Oh well, if this is how well Goldberg thinks who hold Living Document views reason, then of course he shouldn’t think there’s a rational and reasonable disagreement.  But he’s not reasonably held that view.