關於同性婚姻的原意主義方法論的辯論…..值得一看

之前本部落格轉載過美國聯邦最高法院將審理同性婚姻的案件,應該是直球對決(轉載在此)!這一系列的討論,是針對「原意主義是否能夠針對同性婚姻的憲法保障」提出論證這一系列問題而來的。我想,非常值得對於憲法解釋方法論有興趣的人閱讀,強烈推薦!! 參與論戰者有三人。

  1. Orin Kerr在2015年1月28,發表一篇:Is there an originalist case for a right to same-sex marriage?,質疑Ilya Somin對於同性婚姻並未提出沒有堅強原意主義論證。
  2. Ilya Somin撰文:Originalism is broad enough to include arguments for a constitutional right to same-sex marriage,反擊Orin Kerr的批評。
  3. Larry Solum教授則在看見兩人論戰後,發文說明原意主義的意義:What Should Count as an Originalist Case for a Right to Same Sex Marriage
  4. Orin Kerr在1月29日,撰文:More on originalism and same-sex marriage,分別回擊Larry Solum以及Ilya Somin的論點(PS. 連杜靈測試都出來了!)。
  5. 而Ilya Somin也再次撰文反擊Orin Kerr對於原意主義的界定:Originalism and same-sex marriage revisited – a further rejoinder to Orin Kerr
  6. 最後,Larry Solum教授,再次加入戰局,說明為何適當界定原意主義事件重要的事情、Orin Kerr可能界定的原義主義是什麼,以及Solum的批判:More on Originalism and Same Sex Marriage

心得:1. 短短兩天多的時間有這麼多文字,效率真好!2. Solum所提到對於原義主義在一般人中的界定或許可以見到原意主義的討論是非常分歧的。像Solum教授,努力在要在一群憲法解釋方法中提出比較深度說明,仍有許多要克服的困難。

” So far as I know, there is no good empirical data on public beliefs about originalism. Because I am an originalist, I do talk to all sorts of folks (academics, judges, lawyers, and lay people) about originalism. It seems likely to me that many members of the public have never heard of originalism. One common lay understanding of originalism is that it is shorthand for “judicial conservatism” or “what religious conservatives believe the constitution means.” I have heard originalism defined as “anti-woman” and as “reactionary.”  And on the other side of the spectrum, originalism is perceived as the view that “the law should be American” or “what liberal judges are doing is wrong.”  As you might expect, very few lay people (including very intelligent people who are well informed about public affairs generally) have even a vague notion of what originalism actually is.

Even among some academics, lawyers, and judges, definitions of originalism are frequently dated and based on misconceptions. I have had many conversations with fairly sophisticated academics and practitioners who believe that “original intentions originalism” is the only form of originalism, and more crudely, that originalism is the view that we should decide cases by asking what James Madison would have done. That definition of originalism excludes both Justice Scalia and Justice Thomas—they are public meaning originalists, as are most contemporary originalist academics.  I should think it obvious that a definition of originalism that excludes them is not a good one.”



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