Conservative Restoration of Literacy Education

Originalism

“…[T]he conservative restoration [movement] is based on a de-integrative strategy [with the] result [being] ‘the creation of a divided and amoral political community.’ …At the cultural level, capitalism establishes a metric that measures everything…by the ability to produce wealth and by the success in earning it” (Michael Apple, 1993, Official Knowledge: Democratic Education in a Conservative Age, Routledge, p. 3-5).

In the 1990s when Apple wrote, mainstream perspectives on literacy were apolitical in a semi-conscious unanimity. Apple was issuing a wake-up call. Of course, everyone knew the public purpose of reading and writing and therefore the purpose of public schools was happily technological, vocational, separating the wheat from the chaff as they say, especially in matters of disciplinary literacy. High school diplomas were tickets to ride in a designated seat in the economy, a college degree a license to drive a bus. In the official regime in 1990 as in 1787, of course, literacy and its manifestation in education was “…a crucial means to gain power and control over our entire lives” (Apple, 1993, p.44). It wasn’t accidental that literacy was forbidden fruit for African slaves.

The official metric today that measures proximal success for public schools in dispensing official knowledge is designated in performance bands of standard scores on largely machine-scorable tests. Current standards were hammered out, after political skirmishes dating back to the 1990s, most recently in 2010 and ratified by the States in the following years. Known as the Common Core State Standards, these agreements purported to define what children starting school today need to learn in order to be college or career ready, able to produce and make money, upon graduation from high school.

The idea of spending federal or state tax dollars to fund a common school system was politically unthinkable in the United States before the Civil War. The Common School movement championed by Horace Mann in the early 19th century gained traction not with federal or state moneys, but from voluntary community giving at the local level. These schools were not meant for everyone; it was illegal to educate children of slaves in the South. Poor white parents in their communities did the best they could with what they had.

With unsurprising irony, during Reconstruction freedmen working with the Freedman’s Bureau during the Union’s military occupation of the South brought political pressure to bear to tax counties to pay for schools in furtherance of their belief in learning as the great equalizer. Greatly outnumbering the white male population in the South, former slaves with the right to vote enforced by Union soldiers in every holler and plantation were deadly serious about their children going to school. Vote they did—until the departure of the Union occupiers opened space for the KKK (cf. David Blight, Eric Foner, W.E.B. du Bois).

Gradually as the decades rolled by States formed public school organizational structures in symmetry, mostly white, some black; State Departments of Education, local districts, administrative hierarchies materialized. School systems were found to have the Constitution’s blessing to segregate according to race in the 19th century under the 1896 Supreme Court decision Plessy v Ferguson, integrated by Brown v Board of Education in the 20th century, followed by a whiplash conservative movement to de-integrate and restore the old ways was off as cowboy hats and gun slinging made their comeback.

Beyond technological and material advancements, beyond psychology and education science, the factory model of scientific management instantiated in daily life has arguably changed little since the 1930s despite wave after wave of reform projects funded during periods of politically liberal control. The conservative goal has always been to assure a competent Christian working class—college or career ready—able to read words, spell words, add, subtract, tell time, and count money. Buried in these goals is an insidious, persistent, undemocratic, unscientific assumption about the appropriate way to comprehend a written text: The theory of the autonomous text with determinate meaning. This assumption appears in the 21st century in the science of the Reading League, the politics of the NAEP Reading Test Hijackers, the censorship of Mothers of Liberty, and the cognitive limitations of a Text with Four Corners.

Equality in Schools (Image courtesy of OpenAI, December, 2023)

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Many roads lead to the notion of the autonomous text. Brian Street, an anthropologist, developed the theory of ideological literacy to distinguish value-laden and power-bearing text from the all too common view of texts as benign autonomous machines functioning identically everywhere separate from human motives or relations. Through contrasting a sterile, technical model of comprehension with a model of reading in the wild, Street provided a rationale and evidence for a different view of texts as situated and ideological. Taking a more positive view of the assumption of textual autonomy, the New Critical approach championed by literary critics uses the term “autotelic” text to refer to the idea that literary texts are to be interpreted independent of author, genre, and historical contexts—everything anyone needs to know is found within the four corners of the text.

Hans Gadamer, a 20th century German philosopher and philologist deeply influenced by Plato’s use of dialogue to structure meaning in texts, was interested in the recovery of meaning from sacred texts. With roots in the European Enlightenment when intellectuals were developing a theoretical framework for objective reading practices, or exegesis, of the Bible, Gadamer’s theory absorbed 19th century advances in the field of hermeneutics to help him codify rules for objective interpretive reading. The following explanation of a key principle in Gadamer’s method of decoding text is tough sledding; I’ll unpack it as best as I can afterwards:

…[I]f we wish to understand some particular artwork, we must already have some prior understanding of that work (even if only as a set of paint marks on canvas), otherwise it cannot even be seen as something to be understood. To put the point more generally, and in more basic ontological terms, if we are to understand anything at all, we must already find ourselves ‘in’ the world ‘along with’ that which is to be understood. All understanding that is directed at the grasp of some particular subject matter is thus based in a prior ‘ontological’ understanding—a prior hermeneutical situatedness. On this basis, hermeneutics can be understood as the attempt to ‘make explicit’ the structure of such situatedness (Jeff Palpas, 2022, see url above).

Applied to reading, point one signifies that before comprehension is possible, the reader must grasp that the text in question isn’t just squiggles, but code structured (written) to convey a message. To recover meaning, we must find ourselves mentally “in” the same world as the textworld “along with that which is to be understood.” Meaning inside a text must be psychologically isolated from meaning in the reader’s world.

Since meaning in the text was transported from a mind originally outside to the inner stuff of the text at a particular time and place, to recover that meaning, a reader must confine attention to only that which is in the text and activate the semantics of words as they were used at that time and in that place. Since meaning is recoverable only within larger structures (e.g., a Platonic dialogic structure of question and answer or a narrative structure or a five paragraph essay) reading to recover meaning begins with staying within the four corners of the text using old meanings for words and searching for meaning in the text structure.

This approach to reading squares with common practice in teaching reading comprehension in schools. Reading assignments direct students to recover meanings as these meanings were encoded originally; since expert readers like teachers or test makers are privy to the official meaning, learners face the job of following the breadcrumbs of the text until they are able to construct enough officially sanctioned meaning to pass the test. Linking meanings from outside the text is an error in comprehension.

This approach also dominates the reading practices six of our current Supreme Court Justices apply to their interpretation of the U.S. Constitution as they develop their jurisprudence. Called “Originalism,” this way of reading includes all of the assumptions of an autonomous perspective with important political implications for Supreme Court decisions. With this background in mind I had a long conversation with ChatSmith4 and will excerpt from that chat below.

Public intellectuals like Michael Apple at UW Madison saw the writing on the wall long before the fog of misinformation, political witchcraft, and electoral machinations at the start of the 21st century, ranging from hanging chads to hang Mike Pence. The “conservative restoration” of America, exemplified by a project at Hillsdale College that “…believes in preserving America’s centuries-old biblical tradition of charity and old-fashioned philanthropy” has not been kind to the unwashed masses who historically have struggled for economic humanization and moral visibility and value. The “conservative restoration” movement begun in earnest with the Federalist Society circa 1980 is intent on dialing back to Constitutional protections to those situated in 1787.

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I began a discussion with Smith4 to explore what Frederick Nietzsche might say if he were asked to compare Donald Trump with Adolph Hitler. Smith4 was reluctant to engage the topic, though I was able to direct the bot to locate evidence that the comparison is commonplace. I didn’t dream it up myself. During this section, the bot used the term “originalism” and I pounced:

User: So I hear you saying that Originalists apply a flawed method of reasoning when they try to decide modern cases by studying the original intentions of the framers at the time of writing the Constitution

Smith4: The view on Originalism and its application to modern cases isn't universally agreed upon, and as an AI, my role is not to take a position but to outline the arguments.

Originalism is a legal philosophy that interprets the Constitution based on the understanding that it has a fixed meaning at the time of its enactment. Originalists strive to determine what the text of the Constitution would have meant to the people who drafted and ratified it. They argue that this approach maintains legal stability and respects the sovereignty of the past democratic processes.

Critics of Originalism, however, argue that the method presents several challenges:

1. **Historical Context**: Determining the original intent or meaning of the Constitution can be challenging because of the historical distance, as the framers could not have foreseen modern issues and technologies.

2. **Vagueness and Ambiguity**: Some constitutional provisions are intentionally vague or open-ended; for example, terms like "cruel and unusual punishment" or "due process" can be subject to varied interpretation.

3. **Diverse Framers' Intentions**: The framers of the Constitution had differing opinions and intents, which makes it difficult to ascertain a single, unified original intent.

4. **Dynamic Society**: The critics argue that society changes, and a rigid adherence to past norms can impede progress and adaptation to new societal norms and challenges.

Supporters of Originalism counter these critiques by arguing:

1. **Legal Stability**: It provides a clear, stable standard for interpretation that does not depend on the shifting political and personal beliefs of judges.

2. **Democratic Principles**: It respects the democratic process by adhering to the Constitution as written and ratified, and not allowing judges to create new law based on subjective interpretations.

3. **Textual Evidence**: They maintain that careful historical and linguistic analysis can clarify the Constitution's original meaning, despite challenges in interpretation.

4. **Amendment Process**: When societal changes do call for adjustments in governance, Originalism points to the formal amendment process as the legitimate means for making such changes, rather than judicial reinterpretation.

In legal circles, the debate over Originalism versus other interpretive methods, such as Living Constitutionalism or Pragmatism, is ongoing. Each method has its philosophical underpinnings and implications for how the law adapts or adheres to historical intents and principles. The role of the judiciary in interpreting the Constitution remains a central debate in legal and political philosophy.

I discovered a paper published in 2019 in the Northwestern University Law review generally confirming the information above. The paper, however, is 51 pages long and dives deeply into contested nuances far beyond the bot’s ken. If you’re interested in a technical essay trying to reconcile the Living Constitution reading method with the Originalist method, click here.

User: Legal stability makes little rational sense does it?

Smith4: Legal stability is an important concept in the legal system and holds rational significance for several reasons:

1. **Predictability**: A stable legal system provides citizens and businesses with a predictable legal environment. When laws and their interpretations remain stable, individuals and organizations can plan their actions with a reasonable expectation of the legal consequences, which is essential for the functioning of society and the economy.

2. **Fairness**: Stability promotes fairness by ensuring that similar cases are treated similarly. If the law or its interpretation changes frequently, individuals may feel that the application of the law is arbitrary or capricious, undermining trust in the judicial system.

3. **Rule of Law**: Legal stability is a cornerstone of the rule of law, which maintains that laws, rather than individuals, should govern society. A stable legal system upholds the rule of law by ensuring that laws are clear, public, and relatively permanent.

4. **Checks and Balances**: Stable laws prevent the judiciary from becoming a super-legislature by making new laws through interpretation, which is a task traditionally reserved for the legislative branch. This respects the separation of powers and checks and balances built into many democratic systems.

5. **Protection of Rights**: A stable legal interpretation of rights ensures that individuals are secure in their rights and that these rights cannot be easily eroded by changing interpretations.

6. **Efficiency**: Court systems rely on precedent to resolve cases efficiently. Without stability in the law, every legal question would need to be reconsidered afresh, greatly increasing the time and resources required to resolve disputes.

While legal stability is generally considered valuable, it's important to balance stability with flexibility, as societies evolve and new challenges emerge. The legal system must be responsive enough to adapt to changes without sacrificing the predictability and fairness that come with stability. This balance is at the heart of debates between different philosophies of legal interpretation such as Originalism and more adaptive approaches like Living Constitutionalism.

User: Here are your words: 1. **Legal Stability**: It provides a clear, stable standard for interpretation that does not depend on the shifting political and personal beliefs of judges.

I agree that legal stability is a good thing. I don’t see that it’s rational to argue that originalist protocols for reading ancient texts are objective. Such reading is inherently subjective.

Smith4: The debate over the objectivity of originalist interpretations of ancient or foundational texts, like the U.S. Constitution, centers on whether it is possible to understand and apply the authors' original intent or meaning without injecting contemporary values and biases.

Those who are skeptical, like yourself, argue that:

1. **Historical Ambiguity**: Historical texts often do not provide clear guidance on modern issues because they were written in a very different context, with different assumptions about society, technology, and government.

2. **Interpretive Challenges**: Even with clear historical records, the act of interpretation is inherently subjective. Each person brings their own understanding and perspective to the text, influenced by their education, experiences, and values.

3. **Language Evolution**: The meanings of words and phrases evolve over time, and trying to pin down what an ancient or foundational text "objectively" meant can be elusive.

Supporters of originalism contend that:

1. **Framework for Interpretation**: Originalism provides a disciplined approach that seeks to limit the reader's subjectivity by focusing on historical sources, such as dictionaries, legal documents, and other writings from the time period of the text's creation.

2. **Intent of Lawmakers**: Originalism tries to honor the intentions of those who created the law, operating under the assumption that laws have fixed meanings at the time of their enactment.

3. **Limiting Judicial Power**: By adhering to original meanings, judges are constrained from imposing their values on the text, thus providing a check on judicial activism.

While originalism aims to provide a more objective method for interpreting texts, critics note that it is not free from subjective influences and that it still requires interpretation and judgment from justices—who must decide which historical interpretations to prioritize and how to apply those interpretations to cases that the original authors could not have anticipated. It is the challenge of balancing the need for stability and consistency with the recognition of inherent interpretive subjectivity that lies at the heart of legal philosophy debates.

Evidence abounds that legal scholars are currently engaged in a vigorous debate about reading practices that can provide an objective anchor in the manner of originalism and a complementary set of practices permitting reasoned applications of anchor principles to modern circumstances. A modern book title, for example, is “Living Originalism.” For example scholarly discussions check here and here.

User: Balancing the need for consistency with the inherent fact of individual subjectivity by offloading the responsibility for judgement to a dictionary or another ancient text seems ludicrous. It seems too easy, almost technical. By this logic AI would make the best judge of human affairs.

Smith4: Your observation hits on a critical point in the debate around originalism and the use of external sources to guide legal interpretation. Here are some of the reasons why relying solely on historical texts and tools like dictionaries to make judicial decisions is contested:

1. **Complex Interpretation**: Legal texts and dictionaries from a particular era can be helpful, but they often cannot capture the full context, nuances, and subtleties of language and intent.

2. **Selective Reference**: Using ancient texts as definitive guides can lead to selective referencing, where one might cherry-pick definitions or interpretations that support a preferred conclusion while ignoring others that do not.

3. **Societal Evolution**: Societies and their values evolve, raising the question of whether interpretations from centuries ago should be applied rigidly to contemporary issues.

Regarding the idea of AI as judges:

1. **Lack of Nuance**: While AI can process vast amounts of data and provide consistent decision-making based on predefined algorithms, it lacks the human capability for understanding nuance, ethical considerations, and the evolving nature of societal norms.

2. **Emotional Intelligence**: AI does not possess emotional intelligence, which is essential for empathy and understanding the human impact of legal decisions.

3. **Changing Standards**: AI would struggle to adapt to shifting legal standards unless frequently updated, which still would involve human judgment and decisions.

Ultimately, the argument points to the need for a balance—where historical understanding can inform interpretations, but flexibility allows those interpretations to be applied wisely to modern situations. The role of judges is not merely technical; it involves moral and social dimensions, discretion, and the ability to adapt to evolving societal values—all of which are deeply human traits that AI currently cannot replicate.

The remainder of this discussion is a bit freewheeling. I include it here to give you a sense of the bot’s scraping of meaning from linguistic patterns used in print on the Internet. I can’t vouch for the details. The information does, however, make clear that Apple’s warning in 1993 of a conservative restoration movement that took hold in the second half of the 20th century has produced a majority on the Supreme Court trained to read the Constitutional text from an Originalist perspective, a perspective which opposes humanizing education by elevating public schooling to the status of a federal civil right.

Smith4 failed to surface a raging debate currently going on about the proper role of federal judges, which could have been triggered by the context of the user command. According to one online source, 73% of sitting federal judges are male, and 80% are white, mirroring the pattern of representation in the Senate. The bot finds that a “balance” in approach, weighing historical meanings while considering evolving societal values. The AI’s simplified view of the situation in which public perception of legitimacy of federal courts is at an historic low is unacceptable, in my view. The problem of federal democratic jurisprudence certainly includes ways of reading the Constitution, but unequal representation of the population on the bench is perhaps a bigger problem.

User: So I ask you again: Is it possible to defend originalist readings of ancient texts? By this I don’t mean readers ignore the plain sense of the text. I mean the possibility of excavation of a unified, determinate, finite meaning through controlled reading processes?

Smith4: Defending originalist interpretations of ancient texts, particularly in a legal context, is possible and actively pursued by some legal scholars and judges. The central premise of certain strands of originalism is about honoring the intentions and understandings of the text's authors at the time of writing. Here are a few arguments used to defend this approach:

1. **Historical Integrity**: Originalism aims to respect the historical integrity of a text by attempting to access the meaning as understood at the time of its creation. This avoids projecting modern biases onto the text.

2. **Rule of Law**: Originalists argue that their approach supports the rule of law by providing a clear, stable foundation that is not subject to the whims of changing societal views or judicial preference. This facilitates predictability and consistency in legal decisions.

3. **Democratic Principles**: By adhering to the text as understood at the time of its ratification, originalism respects the democratic process and the choices made by the society that adopted the legal document.

4. **Judicial Restraint**: Originalism can be seen as a check against judicial activism, limiting judges from creating new rights or obligations not expressed in the document itself.

However, it is important to acknowledge the criticisms and the complexity of the endeavor:

- **Determinacy**: Critics question whether a single, determinate meaning can be attributed to a text, given that language can be inherently ambiguous and that diverse interpretations often existed even at the time of writing.

- **Intent vs. Text**: There is debate over whether originalism should focus on the intent of the authors (which may not always be clear or unified) or the original public meaning of the text.

- **Historical Context**: It may be difficult to fully recover the historical context necessary to understand a text as it was originally intended, due to the passage of time and the possible loss of contemporaneous cultural, legal, and linguistic nuances.

- **Evolution of Society**: Critics argue that strict adherence to original meanings may not account for the evolution of society, technology, and values, potentially ignoring the need for constitutional or legal documents to adapt.

In sum, while originalism has strong philosophical and procedural defenses, and many adhere to its principles in seeking a controlled reading process, it remains a subject of intense debate due to challenges in historical interpretation, language ambiguity, and the relationship between law and contemporary societal norms.

User: The arguments you marshal for the originalist position speak to the goals of its preferred reading process. I don’t see any primary arguments from the opposition against the goals—attending to history, understanding the context of the document, providing stability. Both sides share these goals. But the originalists do not even address the concerns of the opposition which all raise issues regarding the efficacy of the originalist reader procedure? Is it even defensible as a process? Is it even possible that a text can have a determinate meaning comprehensible by all who follow the reading recipe?

Smith4: The opposition to originalism raises several concerns about the efficacy and defensibility of the reading process advocated by originalists. The central critiques hinge on the feasibility of accessing determinate meanings and the belief that a fixed, objective interpretation can be consistently reached by different readers. Here are a few key points of contention:

1. **Determinate Meaning**: Opponents argue that the belief in a fixed and easily retrievable determinate meaning of a text is overly simplistic. Language is inherently fluid; meanings of words and phrases can change over time, and even contemporary readers might not agree on the 'original' meaning.

2. **Varied Interpretations at Origin**: At the time a text is written, there can be a range of interpretations among the people who authored or ratified it. This pluralism of thought makes it difficult to pinpoint a single, authoritative interpretation that originalists seek.

3. **Historical Reconstruction**: Critics contend that it may be impossible to fully reconstruct the historical context required to understand the intent behind the text. The passage of time can erode the necessary cultural, social, and linguistic knowledge that informs accurate interpretation.

4. **Reader Bias**: Opponents point out that no reading process is entirely objective. Every reader brings their own experiences, education, and biases to interpretation, which can color their understanding of a text's original meaning, making it less a scientific retrieval and more an act of interpretative construction.

5. **Evolution of Societal Values**: Society continuously evolves, raising questions about the application of ancient wisdom to modern dilemmas. The strict originalist approach may struggle to adapt legal principles to new societal and technological realities.

6. **Judicial Role**: Finally, there is a concern about the appropriate role of the judiciary. Critics of originalism suggest that the judiciary should interpret the law in a way that keeps it relevant and functional for contemporary society, rather than strictly bound to historical interpretations.

Originalism's defensibility largely depends on one’s views about legal interpretation, the flexibility of language, and the role of the judiciary. While some originalists acknowledge these challenges and adapt their methods—focusing on the original public meaning rather than the intent of the framers, for example—critics still question whether the process itself is sustainable, universally applicable, and appropriate for a modern legal system.

In essence, the debate is not only about whether certain goals are desirable but whether the originalist reading process is capable of achieving those goals effectively and whether it is the most suitable approach given the dynamic nature of human language, culture, and society.

User: Provide me more information from the originalist camp regarding concessions that the nature and function of sociohistorical and cultural factors shaping interpretations of written texts makes the search for pristine discrete determinate messages is a fools errand.

Smith4: Originalists acknowledge the challenge posed by sociohistorical and cultural changes when interpreting ancient texts. Their perspective typically concedes that complete detachment from contemporary values and an understanding of the precise historical context can be difficult. However, they often emphasize several key points to counter the argument that seeking an original, discrete message is futile:

1. **Historical Research**: Originalists argue for the vigorous use of historical research methods to reconstruct the context in which a text was created. This includes the examination of contemporaneous writings, dictionaries, and other historical evidence to ascertain the original public meaning of the text.

2. **Rule of Law**: Supporters of originalism maintain that a stable, predictable legal system is essential for the rule of law. They assert that, while attaining perfect insight into original intent may not always be possible, striving for it helps to constrain judicial activism and arbitrary interpretation which could threaten legal stability.

3. **Democratic Principles**: Originalists often argue that since laws and constitutional provisions were enacted through a democratic process, interpreting them as closely as possible to their original meaning respects the will of the people and the legislative process.

4. **Legal Precedent**: Although acknowledging change and evolution, originalists may also rely on a body of legal precedent to guide current interpretations. They might admit that while original intentions are crucial, the accumulation of interpretations over time can also offer a degree of stability.

5. **Framework Originalism**: Some originalists adopt a less rigid approach, accepting that certain aspects of a text are open to interpretation within a framework of original principles. This approach concedes that not every specific application can be predicted, but a framework exists within which changes can be interpreted.

6. **Bounded Flexibility**: Originalists may not insist on the application of specific historical practices but might allow for interpretation consistent with underlying principles. They may argue that these principles can be applied flexibly to new situations without straying from the text's original meaning.

7. **Focus on Language**: Some originalists argue that the original meaning can be discerned from the ordinary meaning of the text's language to the people at the time of its enactment, even if sociohistorical contexts have altered.

Originalists acknowledge the influence of sociohistorical and cultural factors on interpretation but contend that diligent methodological approaches and commitments to legal tradition can mediate these effects. Despite the challenges, they view their approach as the best means for maintaining legal order, respecting democratic decision-making, and ensuring that changes to the fundamental law are made properly through the amendment process or democratic action rather than judicial reinterpretation.

User: You are making the Originalist wing look like academics searching for direct insights into the distant past. The difference is judges are not academics. Is Originalism taught in law schools?

Smith4: Yes, originalism is taught in law schools, often as part of courses on constitutional law, legal interpretation, or legal philosophy. Law students are exposed to a variety of interpretive theories, and originalism is a significant and influential approach within American legal thought.

Originalism is presented both on its own merits and in contrast to other methods of interpretation, such as living constitutionalism or purposivism. Students are encouraged to understand the principles underpinning originalism, which asserts that constitutional interpretation should be based on the text's original public meaning as understood at the time of its ratification. They also examine criticisms and debates surrounding this philosophy.

Law schools aim to provide future lawyers and judges with a comprehensive understanding of the various methods of legal interpretation since these principles can deeply influence judicial decisions. By understanding originalism and other schools of thought, law students are better equipped to engage with the complexities of legal interpretation in their future careers, whether they become judges, practicing attorneys, or legal scholars.

User: Is it a coincidence that conservatives read according to Originalist dogma while Living Constitutionalists read according to theories of semiotics more appropriately called progressive and enlightened?

Smith4: The alignment between conservative jurists and originalism and between progressive jurists and living constitutionalism is not entirely coincidental. It stems from broader ideological differences that influence how each group views the law, the role of the courts, and the evolution of society.

Originalism often appeals to conservative jurists because it emphasizes stability, predictability, and restraint in judicial interpretation, aligning with a conservative preference for tradition and a cautious approach to change. Originalists argue that the Constitution's meaning can be objectively determined based on historical context, which they see as a way to limit judicial activism and ensure that any significant legal or social changes are made democratically through the amendment process rather than through judicial decree.

In contrast, living constitutionalists or proponents of progressive legal theories tend to be more concerned with the Constitution's ability to adapt to contemporary societal needs and values. They view the Constitution as a dynamic document that should be interpreted in light of evolving moral, social, and political circumstances. This approach aligns with a more liberal or progressive perspective, emphasizing justice, inclusivity, and the law's capacity to address current problems.

Both approaches are rooted in different philosophical underpinnings and conceptions of the law's role in society. Originalism aligns with a more formalist understanding of legal interpretation, emphasizing textual and historical analysis. Living constitutionalism, on the other hand, is often associated with pragmatism and interpretivism, which take into account broader social factors and the impact of legal decisions.

It's important to note that not all conservatives are originalists, nor are all progressives living constitutionalists. Additionally, within these broad categories, there is a wide array of nuanced views. However, the general trend exists because the interpretive methods align with deeper ideological and philosophical positions that tend to correlate with the conservative-progressive divide in American jurisprudence. The debate over these approaches is an ongoing element of U.S. constitutional law and is reflective of the broader political and social discourse.

User: Can you identify any conservatives who are not originalists after 1980?

Smith4: After 1980, the conservative legal landscape in the United States became more closely associated with originalism, largely due to its promotion by figures like Attorney General Edwin Meese and Justice Antonin Scalia. Despite this trend, there have still been conservative-leaning jurists and legal scholars who do not strictly adhere to originalist principles. Here are a couple of examples:

1. **Justice Anthony Kennedy (1936–)** - Appointed to the Supreme Court in 1988 by President Ronald Reagan, Kennedy was often considered a swing vote on the court. While he had conservative leanings, he did not strictly adhere to originalism. His jurisprudence was marked by an emphasis on individual liberty and dignity, which led him to craft pivotal opinions on rights related to privacy and same-sex marriage (e.g., *Obergefell v. Hodges*). Kennedy's approach was often more pragmatic and influenced by contemporary values, rather than solely by the original public meaning of the Constitution.

2. **Justice Sandra Day O'Connor (1930–)** - Also a Reagan appointee, Justice O'Connor was the first woman to serve on the Supreme Court, and she served from 1981 to 2006. She was considered a moderate conservative and practiced a jurisprudence of judicial restraint and incrementalism. O'Connor often decided cases narrowly and avoided sweeping rulings, sometimes eschewing a strict originalist framework in favor of a more pragmatic, balanced approach. She was known for considering the practical effects of the Court's rulings.

Both Kennedy and O'Connor, while conservative, often showed a willingness to embrace a more living Constitution approach in certain decisions, reflecting the understanding that societal standards and values can evolve over time. Not every conservative jurist post-1980 has been a thoroughgoing originalist, and these two justices demonstrate the diversity of thought within conservative jurisprudence.

User: Name three conservative jurists after 2006 who were not originalists.

Smith4: After 2006, conservatism in the judiciary has been largely characterized by a commitment to originalism, especially among those appointed by Republican presidents. However, not all conservative-leaning jurists strictly adhere to originalism. Identifying conservative jurists who openly reject originalism can be challenging due to the prevalence of the philosophy among conservative legal thinkers. Nonetheless, some jurists have adopted approaches that incorporate elements beyond original public meaning. Here are three jurists who have served after 2006 and have shown conservative tendencies without being strictly originalist:

1. **Chief Justice John Roberts (1955–)** - Appointed by President George W. Bush, Roberts assumed his role in 2005. While he often aligns with the conservative wing of the Court and does apply originalist reasoning at times, Roberts is also known for his institutionalist concern for the Court's legitimacy. This has led him to take moderate positions on certain cases, such as upholding the Affordable Care Act in *National Federation of Independent Business v. Sebelius*, and he has demonstrated a willingness to make decisions taking precedent and practical implications into consideration. Roberts's stewardship suggests a pragmatic approach that sometimes diverges from strict originalism.

2. **Justice Samuel Alito (1950–)** - Also appointed by George W. Bush and serving since 2006, Justice Alito has generally been associated with the conservative wing of the Court. Alito has demonstrated originalist leanings but does not always utilize originalism exclusively or rigidly. His jurisprudence often stresses respect for precedent and practices a more case-by-case approach.

3. **Justice Brett Kavanaugh (1965–)** - Appointed by President Donald Trump, Kavanaugh joined the Court in 2018. While his judicial philosophy has many originalist and textualist elements, his time on the Court has, in some instances, shown him to exercise a degree of pragmatism. For example, in *Apple Inc. v. Pepper*, Kavanaugh sided with the Court's liberal justices in ruling that iPhone users could sue Apple for monopolistic pricing practices, signifying a decision not predictably aligned with a strict originalist viewpoint.

These jurists are conservative in their leanings, yet their decisions and writings reveal a range of approaches, which include but are not limited to strict originalism. It's important to note that while justices may primarily identify with a particular interpretive methodology, their judicial decisions can also reflect other influences such as legal precedent, considerations of consequence, and institutional matters.

User: Reflect further on Alito. It’s difficult for me to believe you have factual evidence to support your inclusion of this jurist in the category.

Smith4: I apologize for any confusion earlier in the discussion. It's important to clarify that Justice Samuel Alito is indeed commonly characterized as an originalist. He was appointed to the Supreme Court by President George W. Bush in January 2006, and during his tenure, he has often aligned with originalist or textualist positions, particularly in cases related to the Constitution.

Justice Alito has demonstrated a strong inclination towards conservative legal principles and has often sought to ground his decisions in the text and history of the Constitution, similar to other well-known originalist justices, such as the late Antonin Scalia and current Justice Clarence Thomas. However, like many jurists, Alito's judicial philosophy cannot be reduced to a single label, as he has also shown pragmatic considerations in his rulings.

It is critical to recognize that while Alito's judicial approach has originalist leanings, he, along with other justices labeled as originalists, may still occasionally render decisions that diverge from strict originalist doctrine. Thus, while Alito can be categorized as having originalist tendencies, it represents a broader spectrum within conservative jurisprudence that cannot be completely captured by a single term.

In conclusion, Justice Samuel Alito is indeed often associated with an originalist approach to constitutional interpretation, but his rulings reflect both originalist tendencies and a broader conservative philosophy.

User: Compare Alito and Anthony Kennedy in terms of purity of reading protocol

Smith4: Justices Samuel Alito and Anthony Kennedy, though both appointed by Republican presidents and often considered part of the conservative wing of the Supreme Court, have demonstrated notable differences in their judicial philosophies, particularly in the context of constitutional interpretation.

**Justice Samuel Alito**:

Justice Alito is often regarded as a more consistently conservative and originalist justice. He usually favors an interpretation of the Constitution that aims to adhere to the original understanding of the text at the time it was adopted. Alito's approach has been characterized by a commitment to textualism in statutory interpretation and a respect for historical practices and the framers' intent in constitutional matters. His originalist leanings mean he tends to look for a "pure" or clear-cut application of the Constitution's original meanings to contemporary cases.

**Justice Anthony Kennedy**:

In contrast, Justice Kennedy, who served on the Supreme Court from 1988 to 2018, was known for his more pragmatic and sometimes unpredictable approach. Although he could be a reliable conservative vote on many issues, his jurisprudence was less tied to an originalist philosophy. Kennedy was known for his emphasis on the principles of liberty and dignity, which sometimes led him to take more expansive views on individual rights. His swing vote in many key decisions, particularly those concerning social issues, reflected a more interpretivist or 'living constitutionalist' approach, where the Constitution's meaning was viewed as evolving over time to address contemporary societal needs.

Comparing their "purity of reading protocol" in terms of originalism:

- **Alito** tends to adhere more closely to the originalist perspective, emphasizing a more "pure" application of the Constitution's original understanding.

- **Kennedy** was less concerned with originalist purity, often prioritizing a broader interpretation of constitutional principles as they might apply to modern circumstances.

In summary, while both justices have served as conservatives on the Court, Alito has maintained a more consistent originalist approach, striving for a strict application of the Constitution's original meaning. In contrast, Kennedy's rulings often reflected a more interpretive approach that considered the Constitution as a living, adaptable document.

User: Track the differences in conservative vs liberal political power in terms of the US South and the US North before and after the Civil War.

Smith4: Before the Civil War, the political dynamics between the North and the South in the United States were shaped largely by the issue of slavery and the economic differences between the two regions. The South, with its agrarian economy, relied heavily on slave labor and tended to support the Democratic Party, which was more conservative at the time in terms of preserving the institution of slavery.

The North, on the other hand, was more industrialized and had a smaller reliance on slavery. The Republican Party, which was founded in the 1850s, became the main political force opposing the expansion of slavery into new territories and states. The Republican Party at that time could be seen as more liberal in its opposition to slavery, although in a modern context, its policies would not necessarily be classified as liberal.

After the Civil War and the Reconstruction period, there was a political shift. The South, in reaction to the Republican-led abolition of slavery and the perceived intrusion of Northern policies, became a stronghold for the Democratic Party, but this version of the Democratic Party was conservative compared to the Northern Democrats, pushing for states' rights, segregation, and Jim Crow laws.

The North, meanwhile, remained largely Republican, and that party continued to be viewed as the party of progress and modernity. However, it's important to note that the terms "liberal" and "conservative" have evolved over time, and the associations differ from today's political landscape.

Starting in the mid-20th century, there was a significant realignment of party ideology and geographic support bases. The Civil Rights Movement caused a political shift, with the Democratic Party, led by figures like President Lyndon B. Johnson, supporting civil rights legislation. Many Southern conservatives felt alienated by this shift and began moving to the Republican Party following the "Southern Strategy" adopted by the GOP.

By the late 20th century, this transition resulted in the Republican Party becoming the dominant political force in the South, with conservative policies on social issues, limited government, and free-market economics. At the same time, the Democratic Party solidified its standing in the North as the more liberal party, advocating for social justice, civil rights, and a larger role for the federal government in social services.

Today, while these generalizations about North and South can still be observed, the political landscape is more complex with significant liberal pockets in Southern urban centers and conservative regions in the rural North. This highlights the importance of not solely relying on regional stereotypes for understanding contemporary political power in the US.

User: Now use this North-South variable relationship as a framework to discuss the emergence of Originalism as a recognized discursive approach to reading legal texts, including the Constitution.

Smith4: The North-South variable relationship in legal philosophy refers to the geographical distribution of certain jurisprudential schools of thought. In the United States, the emergence of Originalism as a recognized discursive approach can be seen against a historical backdrop marked by regional legal traditions—particularly those of the conservative North and the traditionally more conservative South.

Originalism took root as a modern legal doctrine in the late 20th century, predominantly as a reaction to perceived "judicial activism," where judges are seen to create law rather than interpret it. This was a time marked by the liberal decisions of the Warren Court and later the Burger and early Rehnquist Courts, which, through their rulings, extended civil rights and expanded the powers of the federal government. The decisions of these courts often reflected a national perspective, which did not always align with more conservative, regionally specific ideologies, especially prevalent in the South and parts of the Midwest.

The surge of Originalism was championed by figures such as Robert Bork and Antonin Scalia, who encouraged a return to the interpretation of the Constitution based on its original public meaning or the intent of its Framers. This method was, in part, a reaction against what some, particularly in conservative circles, viewed as the North's imposition of liberal values on a historically more conservative South.

Originalists argue that the Constitution should be interpreted in accordance with the understanding of those who drafted and ratified it, thereby ensuring a stable and predictable legal framework. In their view, allowing contemporary values and societal changes to inform the interpretation of the Constitution leads to judicial outcomes that could lack grounding in the document's actual text and historical context. Originalism thus emerged as a method that sought to limit the role of the judiciary under the principle of separation of powers. It was seen as more in line with the legal traditions of the South, emphasizing state sovereignty and a more literal approach to legal texts.

The distinction between North and South can be seen in the apprehension towards the perceived centralization of authority in the federal government and a preference for states' autonomy and strict constitutional limits—themes that resonate with Originalist thinking. As Originalism became more organized as a legal philosophy, it gained institutional support, particularly among law faculties in the South and Midwest.

Today, Originalism continues to play a significant role in legal and political discourse, shaping the approach of many judges and justices, especially within the conservative spectrum. Its emergence and recognition reflect not only a method of legal interpretation but also a broader dialogue within American society about the role of the judiciary, the evolution of legal traditions, and the enduring tension between the historical meanings of texts and contemporary demands for justice.

User: What is the role of public schools in the originalist interpretation of the Constitution.

Smith4: The role of public schools in an originalist interpretation of the Constitution would focus on the meaning and intent behind the relevant constitutional provisions at the time they were written and ratified. Since the Constitution itself does not explicitly mention education or establish a role for public schools, an originalist approach would likely look to the powers reserved to the states and the people by the Tenth Amendment.

Under originalist theory, these following points might be considered:

1. State Control: Education is not mentioned in the enumerated powers of the federal government; therefore, under the Tenth Amendment, the responsibility for education falls to the states. Public schools, as such, would be under state control, with little constitutional ground for direct federal involvement.

2. No Explicit Right to Education: Since there is no explicit right to education in the Constitution, originalists would argue that any decisions or rights related to public education are not mandated at the federal constitutional level but rather should be determined by state constitutions and laws.

3. Historical Practices: Originalists may look at the common practices at the time of the Constitution’s writing for guidance on education. At the time, education was generally a local affair with a focus on parental and community responsibility.

4. Amendments and Federal Involvement: While the original text does not address education, originalists might acknowledge that subsequent amendments, particularly the 14th Amendment, have been interpreted to place some constraints on how states run public schools (e.g., equality of educational opportunity, desegregation).

5. Supreme Court Precedents: Originalists may also consider previous Supreme Court decisions concerning education, like Brown v. Board of Education, which mandated desegregation of public schools under the Equal Protection Clause of the 14th Amendment. Whether they view these as correct interpretations would depend on their view of the original public meaning of the 14th Amendment.

It is important to note that originalist theory in constitutional law is primarily a way to interpret the Constitution rather than a prescriptive set of policies. As such, the role of public schools in this framework would be defined by historical understanding, state discretion, and constitutional amendments as recognized through originalist reasoning.