Elsewhere, back on Prawfs

I explain my skepticism about Griffin v. California.

A link to my JOTWELL post.

Hooray for Descamps!

An attempt to transcend the climate change debate.

There’s no jurisdiction in Windsor, but nobody else agrees.


Original Lobster

I often find myself trying to explain “originalism.”  And in doing so, I find it helpful to build up a repertoire of good examples of linguistic meanings or expected applications that have changed in dramatic and memorable ways from the founding.  A dear friend has just called my attention to an excellent one, via the famous David Foster Wallace essay:

Up until sometime in the 1800s, though, lobster was literally low-class food, eaten only by the poor and institutionalized. Even in the harsh penal environment of early America, some colonies had laws against feeding lobsters to inmates more than once a week because it was thought to be cruel and unusual . . .

Hence, an illustration of originalism and the sense/reference principle: Even those who argue that the Eighth Amendment’s ban on cruel and unusual punishments should be interpreted in originalist fashion would not argue that it’s unconstitutional to serve prisoners lobster on a daily basis.  (Kashrut issues aside.) The Eighth Amendment’s meaning (sense) is unchanged unless it is amended, but the specific applications (references) may well be quite different.