Kitsch Justice.
I’ve said in earlier posts that it is not the story but the telling that convinces us; it is not the fact of Christ on the cross that affects us (if it does) but the description that plays on our sensitivities.
If I had a young son or daughter who became sick suddenly and died, I would feel a terrible loss. If, instead, my best friend told me that his young son had died, I would feel great sadness, but not as much as if it were my son. If an acquaintance told me that his young son had died, I would understand his sadness, but not feel the sadness I felt for the son of a friend. If I heard on the news that an avalanche killed 200 people in Katmandu, I would think about it for a few moments and maybe imagine the sadness of those I had never thought of nor would ever meet, and go back to what I was doing.
Is there a difference between any of the dead themselves? No. The difference is their proximity to me. And the art of storytelling is to increase, or mimic, proximity. The better the storyteller the better the sense of proximity. [I won’t go into movies here-by collapsing proximity almost entirely they verge on banality- so the best directors and the best films document not the illusion so much as a struggle with it]
What Original Intent theorists argue is that proximity is an illusion created by our use of language, and therefore should be irrelevant. I argued before that in the case of religion and art this is an argument for kitsch [see the link at the top of the post] but what is it in regards to law?
“Times change”, especially under capitalism. “Progress’, for good or evil
-and whatever the word itself means- rules the day. But change or no, we’ve created ‘rules’ in order to give our lives a little order, and on which we have come to an agreement. Even a king has rules he must live by -only a despot makes his own- but in a republic the citizens make the rules themselves rather than merely acquiescing to those of someone else. And we agree to follow them because they create a buffer between each of us, a neutral zone which though created by us is independent, and which we can use to judge the actions of each of us in a way that we consider fair.
How do we go about changing these rules? We have a master set of rules, from which all others must follow. This master set is not just a set of laws, though it does include laws, and rules of government and of lawmaking, but also of principles. And all of these, together act as more buffer zones. So we have rules, and rules governing how we make rules, and principles to which all of these rules must conform. It’s very baroque. It might have been simpler just to make one set of rules and forget about it. For example:

If it can be shown that someone is responsible for a death, by act or accident, he is thereby guilty of murder and should be hanged.

So if you shoot someone in a robbery: you are guilty of murder. And you are also guilty if you run over a little old lady after losing control of your car. Does it matter if the mechanic who worked on the car the week before forgot to tighten the steering column? According to our unambiguous law, it doesn't. There is no room to argue the definition of responsibility. You were the one behind the wheel.
The framers would not consider that a just law, and neither would most people. But the framers knew that language was slippery, so what they did was to create a precise structure not only to facilitate but to constrain debate. Language is often nothing but smoke and mirrors but nonetheless a courtroom is a place where we tell stories, and by necessity examine what it means to tell a story. Even if we place limits on how that story can be told, limits on types of questions that can be asked, limits on strategies, there is no escaping the ambiguity created by our speech. In law as in everything else, outside of “an open and shut” case, where science –and not the interpretation of science- has all the answers, there is no way to avoid it. But that is precisely what scares Justice Antonin Scalia. He is so afraid of the chaos that he fears will be produced, that he fears has been already produced, by our indiscriminate acts of interpretation, that he will defend a strictly mechanical order, out of fear, even to the point of producing patently unjust decisions. In denying language a role in communication, by saying in effect: "we can not afford to make the mistakes that language allows us to make," he's arguing for a legal philosophy of kitsch, for law and order rather than justice.