"Originalism" and Technology

From The New Atlantis: Technology and the Constitution [via LawMeme]

Because of its defining feature—the requirement that constitutional provisions be construed according to their original meaning—originalist textualism is profoundly affected by advances in science and technology. In cases and controversies in which such advances are centrally involved, originalist jurists are required to discern and apply temporally fixed concepts to circumstances and possibilities that could never have been contemplated by the authors of the Constitution. This collision of fixed meaning and novel realities born of technological progress stands to force a “crisis of construction,” where fidelity to originalist textualism is greatly complicated or costly, and in some cases yields politically undesirable or untenable results.

This crisis can take at least three forms. First, there are crises of application, in which the original meaning of the constitutional provision is clear, but technological advances tempt the jurist to depart from this meaning, since doing so would yield a politically desirable result. Second, there are crises of premises, where the original meaning of the clauses in question is once again clear, but where technological developments undermine the factual premises and assumptions that underlie that original meaning, leading to anomalous and unintended political consequences. Finally, there are crises of meaning, in which it is unclear whether a particular word or phrase of a given constitutional provision contemplates a new activity or concept that only new technology makes possible.

By examining the nature of these crises, and reflecting on the capacity of originalist textualism to resolve them within its own self-imposed limiting principles, we can perhaps learn something in general about how technological innovation can affect constitutional interpretation. And we can consider whether an originalist approach to the Constitution is still feasible or sensible in an age when judges routinely confront complex questions at the intersection of ­ technology and law.

Ah, the Record Biz!

The posting, DNA Lounge: DNA Sequencing [via BoingBoing], includes this rant by the singer from Sister Machinegun

[E]verything we’ve played in this set up to this juncture, this crossroads, this… interlude… is released on Positron Records, which we own and operate, the representative of which [at the merch booth] will be happy to supply you with a fix in that regard, for a modest fee which will go toward letting us sleep in a hotel room instead of the van…

Everything after that juncture (that interlude) is released on Wax Trax Records. which means it’s owned by — actually it’s not owned by TVT Records, it’s owned by Credit Suisse. so technically speaking, the first four Sister Machine Gun albums are released on Credit Suisse, a Swiss bank, which is kind of cool when you think about it.

The point being, I don’t get fuckin’ paid for that shit, not a dime, not a single red cent. So you can go ahead and go home, and — hey, you can download it right the fuck here, they got WiFi. Just get up on Morpheus or some fuckin’ thing and get that shit for free.


Whew! I was trying to check my email last night, and found that my desktop machine had slowed to a crawl. After not getting any reasonable explanation, I made a wild guess and checked Slashdot, where I found Beastie Boys’ New Album Silently Installs DRM Code, citing a Furdlog post. My fifteen minutes!

My poor 800 mHz Red Hat desktop wasn’t up to the task, but I did the best I could from home to kill off processes that we’re necessary — it just wasn’t a time to refine Apache and MySQL settings, though. With luck, the G5 I’m expecting will make me a little more resistant the next time around.

Anyway, thanks for the link, Slashdot — with luck, my "house" will be in a little better order should you elect to drop by again!