At Bench Memos, there is an interesting discussion of whether the Senate can confirm Justice O'Connor's replacement until her resignation is effective. Matthew Franck writes:

Ed Whelan speculates about the effects of a delay in Judge Roberts's confirmation, and along the way he notes that Justice O'Connor's "resignation is effective only upon her successor's confirmation." I'm not sure that is altogether true. It may be what O'Connor said, but that doesn't make it so. Some legal scholars I know had an e-mail discussion of this a while back, and here's what I conclude from it.

O'Connor's July 1 letter to President Bush declared that it was "to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor." If those last nine words are understood as setting a condition on her retirement, such that she continues in office and would take part in the next October Term of the Court if Roberts' confirmation were delayed or defeated —- or even if Bush gave Roberts a recess appointment, since that would lack "confirmation" —- then O'Connor has created a classic Catch-22.

Here's why. Title 28 of the United States Code, section 1, reads: "The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." Article II, section 2 of the Constitution tells us that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." For the president to appoint, there must be a vacant seat, whether just vacated or newly created. No tenth seat has been created. If Justice O'Connor remains in her seat today, then there is no vacancy among the nine available seats, and President Bush's nomination of Roberts is a legal nullity. And since there is no legally cognizable nomination for the Senate to act upon, there is no possibility of a confirmation, and Justice O'Connor has been pulling our legs and isn't leaving the Court after all. What a fun three weeks we've all had for nothing!

But of course this is not how the world understands the present situation, and rightly so. President Bush has considered the O'Connor seat vacant since July 1, and has duly nominated Roberts to fill it, and the Senate is poised to go through the confirmation process. These actions speak louder than O'Connor's words, and it is those words that should be considered a legal nullity. There is in fact a vacancy, and she cannot set a condition that would make it otherwise, remaining on the Court as one of the associate justices. Come what may, she's off the bench, and has been since July 1. I never thought Justice O'Connor understood legal principles with any particular clarity, and she departed from the Court in just such a way as to prove me right.

Ed Whelan thinks there is no problem, so long as there is a vacancy when Bush makes the appointment, which there would be since O'Connor's resignation is effective at confirmation.

There is another argument to be made: precedent. Chief Justice Earl Warren announced his resignation in 1968 (with the hope that LBJ would be able to replace him), to be effective when his replacement was confirmed, which didn't happen until June 23, 1969. So Warren officially resigned the same day that CJ Warren Burger was sworn in.

Franck argues that O'Connor has been off the bench since July 1. With Warren having served for essentially a full term after having tendered his resignation, I think that O'Connor would be allowed to serve until her replacement is confirmed, whatever one thinks of the merits of Franck's statutory analysis.

Yet I would expect that this problem must occur with other presidential appointments, so there should be a substantial number of non-judicial precedents that might push the answer strongly one way or the other.

MoveOn is collecting signatures on a petition opposing the confirmation of John Roberts:

Oppose John Roberts' Supreme Court Nomination

In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion. That's why we believe:

"The Senate must not confirm right-wing corporate lawyer John Roberts to the Supreme Court."

MoveOn has a list of talking points against Roberts as well.

USA Today reports that 51% of Americans polled consider the nomination of John Roberts excellent or good (tip to RealClearPolitics):

An early sampling of public opinion found support for Roberts, but also a desire for more information about his views. A USA TODAY/CNN/Gallup Poll of 625 adults Wednesday found:

•51% called the choice excellent or good; 34% called it fair or poor; the rest had no opinion.

•76% said they needed more information before they could decide whether his views were “mainstream.”

•74% felt it would be appropriate to ask Roberts about abortion at the hearings. The poll has an error margin of +/— 4 percentage points.

If MoveOn, the Alliance for Justice, or the People For the American Way decide to run TV ads opposing Roberts, I would expect this to change. Progress for America already has a 30-second pro-Roberts commercial ready to run for a week.

My reading of the climate right now is that without a significant change, the Democratic senators believe that Roberts will be confirmed. While many do not want to confirm a nominee who is likely to be more conservative than Justice O'Connor, many of those most vocal in oppposing Circuit Court of Appeals nominees said that they would confirm judges if they were in the conservative mainstream. Because Roberts is in the conservative mainstream, Democratic senators would find it hard to vote against Roberts in good conscience, especially most of the members of the Gang of 14.

So one question is whether Democratic senators will support Roberts in order to garner good will to fight a future nominee tooth and nail. My guess is that it depends on whether there is a big TV ad campaign against Roberts. If there is, then there may well be enough cover to make the campaign against Roberts a nasty one in the Judiciary Committee. If there is no big TV ad campaign, then I think it will go relatively smoothly for Roberts--a lot of grumping and showboating, but few real fireworks. But a major negative TV ad campaign is a real possibility, and it could change the dynamics considerably.

An interesting account from Sky News about the bomb on the double-decker bus:

Security sources have told Sky News that a high explosive was found on the bus, similar to that used in the July 7 attacks.

They said the strong smell of acetone would have sparked fears of a chemical attack.

And the smell indicated that the explosives had been made up incorrectly, with too much acetone and not enough peroxide.

Witnesses to the explosion said there had been a bang followed by the smell of smoke.

By the way, acetone is the primary ingredient in nail polish remover (if you are wondering what acetone smells like).

Other accounts of the bombs on the trains also mentioned a chemical smell. And early reports suggested that perhaps only the detonators exploded. This Sky News story suggests that the reason for the smell and the small size of the explosions may have been faulty bomb-making.

The blog ThinkProgress has some superb posts on John Roberts (and other Supreme Court issues). For a new blog, they have certainly hit their stride quickly.

1. Response to Orin's Response.

Orin wrote that about two hours before his 8:38pm post Roberts futures were trading at 1% and (at 8:38pm) were trading at 99.5%. He concluded: "Looks like Tradesports was right after all — at least after the announcement was made."

In response, I pointed out (1) that at 6:38pm (two hours before his post), Roberts futures were trading at 10%, not 1% (but I noted that they had been trading at 1% at 5:55pm); and (2) that "At 6:48pm (almost two hours before Orin's post and nearly an hour before the final press leak), Roberts became one of the top two favorites for the first time, trading at 30. At 7pm, for the first time, Roberts became the favorite at 41.9%. After remaining one of three favorites for the following 40 minutes, Roberts became the favorite for good at 7:40pm."

Now in response, Orin acknowledges only my first point:

But as best I can tell, the only apparent ground for his characterization is that I said Roberts was trading at 1% "about 2 hours" before my post, when the exact time Roberts was trading at 1% was 2 hours and 45 minutes before my post. But even assuming we construe "about" to exclude a 45-minute error window, what difference does that make?"

The main reason I wrote my update was to point out that Orin was "incorrect or misleading" in that the trading on Tradesports indicated that Roberts had a very substantial likelihood of being the nominee, not only after the press announced that Roberts would be nominated, but before the press announced it.

Orin points out that KJ Lopez had a post at the Corner at 5:24pm predicting Roberts as the nominee. But, of course, hers was one of many posts that predicted one or another nominee (indeed, Lopez herself was pushing Clement earlier in the day, as were traders on Tradesports). Her reasoning on NRO's The Corner and at NRO's Bench Memos was far from compelling. Here is Lopez's 5:24pm post that Orin notes:

Prediction: Bush will nominate a white male tonight. Just because they said he couldn't.

John Roberts. Bill Pryor! John Bolton!! Karl Rove.

I'm serious about one of those guys, by the way (and, no, I'm not being a right-wing lunatic this time, so this one's an easy guess).

Lopez follows this up at NRO's Bench Memos by pointing out that Luttig's family is in Washington. Her colleague at Bench Memos, Jonathan Adler floats Maurren Mahoney and makes a brief case for Edith Jones. Robert Alt on Bench Memos comments on Luttig's presence with his family in Washington.

At 6:14pm, Lopez follows up her prediction of Roberts or another white male by saying:

Did Major Garrett Just Say that he expects it won't be anyone who can be perceived as "an angry white man"? I assume there's no other kind of white male? With every comment like that I become more and more convinced Bush will do the impossible.

Here's my question: Supposedly when O'Connor was chosen everywoman got goosebumps, wanted to hug her...will men have the same reax if John Roberts is the nominee?

So the reasons Lopez actually gives for Roberts are only (1) that Bush will nominate a white male "Just because they said he couldn't" and (2) "With every comment like that [about angry white males] I become more and more convinced Bush will do the impossible."

At 6:17, Lopez says that she is told it's not Luttig. At 6:27, Lopez says that Roberts is in town, but she wonders where Mary Ann Glendon is, saying, "I can dream."

My point in reviewing some of this (and there is more) is that, while in hindsight Lopez was correct, her publicly stated reasons were far from compelling, and even her colleagues at Bench Memos and The Corner were not giving up on other speculations. The advantage of a market is that it can sift through information and assign a value to it.

Markets are good at evaluating publicly traded stocks, not because no analyst is correct in hindsight, but because it is difficult to know a priori which analyst is correct and which isn't.

So Orin asks whether markets such as Tradesports "just mirror the collective common wisdom of newspapers and blogs." Yet aggregating the collective wisdom and putting a probability on it is a very valuable function in itself. Markets should do this better than most experts reading through the blogs and newspapers and trying to figure out whom to trust.

Orin ends by saying:

I suppose this means that you could try to use Tradesports as a way of monitoring what a few newspapers and blogs are saying, but on the whole this seems like a quite modest function. It seems easier to just scan the headlines at How Appealing.

I just scanned the headlines at How Appealing. Before the press's announcement of Roberts as the nominee, there were headlines suggesting that Clement would be the nominee and then one saying she wouldn't. So How Appealing would not have been a way to aggregate opinion on who the nominee would be, except for the time earlier in the day when Clement was the conventional wisdom choice at How Appealing, The Corner, and Tradesports.

2. The Larger Question.

Part of Orin's and my disagreement tonight is that we are talking past each other.

Orin questioned the predictive ability of trading markets. I responded:

markets are frequently wrong; . . . The question is whether experts can usually do a better job than markets. It would seem that the answer is generally No.

Orin responded:

I think the question is whether markets do a good job predicting the discretionary decision of one person, as compared to predicting the collective outcome of the individual decisions of many. I can see markets doing a good job predicting collective decisionmaking, but I don't see the advantage they have in predicting what one person is thinking. Thus, it seems to me that Tradesport users incorrectly predicted Rehnquist would decide to retire because that's what newspapers were incorrectly predicting at the time; ditto for the idea that Clement would be nominated to replace Rehnquist.

My claim is a comparative one. Markets should do a better job than experts who lack actual inside information of the choice for a number of reasons that are raised in the comments to one of Orin's earlier posts. I would think this would be true both for predicting individual decisions and for predicting voting or future big market decisions, though I don't know what the state of the empirical evidence is on this narrower point.

Orin says that "the question is whether markets do a good job predicting the discretionary decision of one person, as compared to predicting the collective outcome of the individual decisions of many." This way of stating the issue potentially conflates two questions:

(1) the relative difficulty of predicting individual v. collective decisions; and
(2) the relative effectiveness of experts v. electronic markets.

For obvious reasons, predicting one person's decision is probably harder than predicting the aggregate decisions of many people, though sometimes that is not true (I suspect that for some Supreme Court decisions, I could better predict how Scalia would vote than how the Court as an aggregate would vote. Similarly, I expect that I could also better predict how Senator Hatch would vote on Bush's next Court of Appeals nominee than how the Senate Judiciary Committee would vote.)

But if all that Orin were claiming is that individual decisions are usually harder than agggregate decisions to predict (by markets or by experts), then I would suspect that this is generally true.

Yet Orin is questioning the effectiveness of trading markets: "the question is whether markets do a good job predicting the discretionary decision of one person, as compared to predicting the collective outcome of the individual decisions of many."

I am claiming that markets (however "good" or bad they are in absolute terms) should be better than experts on balance, or at least better than experts who lack actual first-hand knowledge of the forthcoming decision. So Orin and I may be talking past each other. I am asserting that I would expect a comparative advantage for markets over experts; Orin is questioning whether markets would "do a good job" predicting individual decisions compared to group ones.

Given our discussion earlier today, I thought that people might be interested in this chart of trading in Roberts futures at Tradesports since about 6:30pm ET.

This is a 2-trade moving average.

As you can see, Roberts became the favorite for the first time about 6:47pm ET (there were several trades between about 6:47 and 7:02 at a price of 30-40) [see update below with more precise data. Roberts became the close 2d favorite to Jones about 6:48 and the favorite for the first time at 7pm, after which he dropped below Jones and then overtook her again at 7:40pm about 6 minutes before the choice was announced by AP.] The market anticipated by about an hour the NBC announcement at about 7:47 that AP was reporting Roberts as the nominee[, but only by making him one of the top two favorites with Edith Jones]. So Clement, the early betting favorite, was replaced by Jones as the betting favorite, who was replaced by Roberts as the betting favorite, who has remained so until just before Bush's news conference.

I still await the actual announcement in a few minutes.

At 8:38pm, Orin posted:

Although Tradesports.com gave John Roberts less than a 1% likelihood of getting the nomination as of about two hours ago, right now it is giving Roberts a 99.5% chance of getting the nomination. Looks like Tradesports was right after all — at least after the announcement was made.

1. At 6:38pm ET, exactly two hours before Orin's post at 8:38pm ET, Roberts had most recently traded (at 6:34pm) at 10%, not 1%, which made Roberts one of several favorites (see the chart above). Roberts had, however, traded at 1% just 45 minutes before that (at 5:55pm).

2. At 6:48pm (almost two hours before Orin's post and nearly an hour before the final press leak), Roberts became one of the top two favorites for the first time, trading at 30. At 7pm, for the first time, Roberts became the favorite at 41.9%. After remaining one of three favorites for the following 40 minutes, Roberts became the favorite for good at 7:40pm.

As Frank Cross has noted, people may expect too much of trading markets. If they function well, they reflect the best estimate (at the time of the trade) of the occurence of a future event. As information changes, estimates can and should change. Whether you think Tradesports did a "good" or a "poor" job reflecting the best estimates of who would be appointed depends on your point of view, and the time frame chosen. Two hours before the 7:46pm AP/NBC report that Roberts was the nominee, Tradesports gave no hint that Roberts would be chosen. About one hour before the announcement, Tradesports began showing him as one of the three favorites, which was far from a consensus view at the time. Certainly, I continued to share the view of many experts that Bush would probably choose a woman or a minority. About 5-6 minutes before the AP/NBC press announcement, Roberts finally edged ahead to stay.

NBC and AP are reporting that John Roberts is the nominee.

Orin Kerr asks about the accuracy of electronic markets. Saul Levmore has an interesting review of the evidence:

Efficient Markets and the Role of Regulation: Lessons from the Iowa Electronic Markets and the Hollywood Stock Exchange Symposium: Revisiting the Mechanisms of Market Efficiency, 28 J. Corporation L. 589 (2003).

Levmore reviews the evidence that even small fantasy markets with little money at stake and thin trading do an extraordinary job predicting outcomes. Those who log on through their law school or law firm computers might be able to download the article at heinonline.org.

I'm reasonably certain that Tradesports.com predicted the outcome of every state in the Nov. 2004 election, even New Hampshire, Iowa, Wisconsin, and New Mexico. That said, markets are frequently wrong; a recent Tradesports example is that traders overwhelmingly thought that Rehnquist would step down before O'Connor. The question is whether experts can usually do a better job than markets. It would seem that the answer is generally No.

UPDATE: By the way, Edith Clement's odds (actually, probabilities) have dropped to 32-48%, while Edith Jones's odds (probabilities) have risen to 27-31% by 5:10pm ET.

2d UPDATE: Cass Sunstein is dicussing information aggregation and markets at Lessig's blog.

And Jones is now (5:30 ET) at 50-54%, while Clement has dropped to 20-28%.

[UPDATE: The post below reflected the betting consensus early to mid afternoon. By 5:50pm ET, the betting at Tradesports.com had switched, and the favorite was Edith Jones of the 5th Circuit (40-52%), not Edith Clement (19-29%).]

ORIGINAL POST:

According to Tradesports.com betting, Bush will choose Edith Clement to fill the O'Connor vacancy on the Supreme Court. The odds on all other nominees have collapsed. The last trade on Clement was at 88 (an 88% probabilty), and the current bid/ask spread is bid 60 / ask 85.5. So, according to the traders at Tradesports.com, there is a 60%-85.5% probability that Bush will choose Clement.

The next highest bids are Jones (5.2) and Owen (5.1), followed by Gonzales at 3.0.

Stanley Fish has a well-written and interesting op-ed in the NY Times. (I don't know whether the op-ed is available to non-subscribers.) Although mainly on the coming debate over the judicial philosophy of prospective nominees, Fish has a lot to say about constitutional interpretation:

If interpreting the Constitution — as opposed to rewriting it — is what you want to do, you are necessarily an "intentionalist," someone who is trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself.

Think about it: if interpreting a document is to be a rational act, if its exercise is to have a goal and a way of assessing progress toward that goal, then it must have an object to aim at, and the only candidate for that object is the author's intention. What other candidate could there be?

One answer to this question has been given by Justice Antonin Scalia and others under the rubric of "textualism." Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry."

The problem is that there is no such object. Suppose you're looking at a rock formation and see in it what seems to be the word "help." You look more closely and decide that, no, what you are seeing is an effect of erosion, random marks that just happen to resemble an English word. The moment you decide that nature caused the effect, you will have lost all interest in interpreting the formation, because you no longer believe that it has been produced intentionally, and therefore you no longer believe that it's a word, a bearer of meaning.

It may look like a word — it may even seem to be more regularly formed as such than the scratchings of someone who is lost — but in the absence of the assumption that what you're looking at is a vehicle of an intention, you will not regard it as language.

. . . Justice Scalia has it backwards: if you're not looking for what is meant, the notion of something being said or written is incoherent. Intention is not something added to language; it is what must already be assumed if what are otherwise mere physical phenomena (rocks or scratch marks) are to be experienced as language. Intention comes first; language, and with it the possibility of meaning, second. And this means that there can be no "textualist" method, because there is no object — no text without writerly intention — to which would-be textualists could be faithful.

And if there is no object — no plain and lucid text to which interpreters could be faithful — neither is there an object to which interpreters could be unfaithful. Consequently, "judicial activism," usually defined as substituting one's preferred meaning in place of the meaning the text clearly encodes, becomes the name of a crime no one could possibly commit. After all, you can't override a meaning that isn't there.

Indeed, because texts do not declare their own meanings, activism, at least of a certain kind, is inevitable. You must actively try to figure out what the author or authors had in mind when setting these marks down on paper. And while the text as written can be a piece of evidence, it cannot — just as that rock formation cannot — be self-sufficient and conclusive evidence.

It follows that any conclusion you reach about the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention. Thus interpretations of the Constitution, no matter how well established or long settled, are inherently susceptible to correction and can always (but not inevitably) be upset by new arguments persuasively made in the right venues by skilled advocates.

This does not mean, however, that interpreting the Constitution is a free-form activity in which anything goes. The activism that cannot be eliminated from interpretation is not an activism without constraint. It is constrained by the knowledge of what its object is — the specifying of authorial intention. An activism that abandons that constraint and just works the text over until it yields a meaning chosen in advance is not a form of interpretation at all, but a form of rewriting.

Rewriting is what is being done by those who talk about the "living Constitution" and ask, "Why should we be constrained by the dead hand of the past?" This makes no more sense than asking, "Why should we be constrained by wills and contracts?" The answer is that without that constraint handed down by the past, law and predictability disappear and are replaced by irresponsibility and the exercise of power. If you can just make it up when interpreting the Constitution, you can also make it up when deciding whether or not to honor your contractual obligations, and so can everyone around you. In fact, if your question is "What do I want it to mean" rather than "What did they mean by it?" you can dispense with "it" and "them" entirely and just go right to the fashioning of the meaning you prefer.

And that is why the only coherent answer to the question "What does the Constitution mean?" is that the Constitution means what its authors intended it to mean. The alternative answers just don't work: the Constitution can't mean what the text alone says because there is no text alone; and it can't mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution's.

Only if the specification of the authors' intention is its goal does interpretation have a real object of inquiry; and only the goal of specifying authorial intention allows us to distinguish between what we might like the Constitution to mean and what we can show — by reasons and evidence publicly offered — that it does mean. . . .

If the nominee identifies himself or herself as a textualist or a strict constructionist and pledges to be a faithful interpreter of the Constitution (as opposed to an unfaithful one?), you will know that he or she is blowing smoke and laying claim to virtues no one could practice. If the nominee promises to test the Constitution against the needs of our present situation, you will know that he or she will not be an interpreter but a rewriter, and no one on either the left or right wants that. And if the nominee says, "I am an intentionalist," the declaration will be uninformative, because every interpreter is necessarily an intentionalist — not by choice but by definition.

There is much to be commended in Fish's account. And I hadn't realized until now that Fish was an originalist. Further, he is presenting highly sophisticated argumentation in the form of an op-ed, which means that he can't be faulted for simplifying or for not dealing with counter-arguments.

Yet it strikes me that Fish's extraordinary literary background makes him misstate (or misunderstand) the central problem that "original intent originalism" purports to solve. Fish writes: "if interpreting a document is to be a rational act, . . . then it must have an object to aim at, and the only candidate for that object is the author's intention." But what gives a law or a Constitution its force as law is that its language was enacted as law or ratified by the states. Why would the author's intention as to the meaning of the words trump the meaning of the words to those who enacted or ratified the language? It is their act that made the language law; it is their act of agreeing to enact the language that transforms what is otherwise only a proposal.

While Fish says there is no alternative to looking to the intent of the author, there is an alternative, indeed, what might seem to be a better alternative: looking to the intent of the enactors, signers, and ratifiers. OK, so Fish might be willing to accept that move, perhaps by revising the idea of the "author" to mean not the author of the language but rather the enactors of the statute or Constitutional provision.

Yet that simple move changes the analysis considerably. Once you have hundreds or thousands of enactors or ratifiers, then you are usually talking about the public meaning of words at the time, not the idiosyncratic private meanings of the man or woman who drafted the language. Now you are in the realm of "original meaning originalism," not "original intent originalism" which Fish posits as the only form of interpretation.

Nonetheless, some original meaning originalists will allow idiosyncratic meanings to trump the usual public meaning at the time if that idiosyncratic meaning was publicly discussed and probably agreed upon (or presumably if legal terms of art are used that differ from ordinary public meaning, e.g., "under color of official right"). Where such idiosyncratic meanings were not discussed publicly or where searching for them might lead to more error than not searching for them, for some people (not me) "textualism" might be a crude shorthand label for looking to the meaning intended by the enactors and ratifiers. Given the cooperative enterprise of enactment or ratification, their intention is very likely to be the public meaning of the words at the time.

So, although Fish is right that intentionality matters and provisions are more than simply arrangements of markings on the face of a rock, he does not follow up that insight by asking (as Rick Kay did in his classic 1980s Northwestern Law Review article) what makes these words important. It is not, as Fish supposes, the intention of the author, but rather the political act of enactment that makes them deserving of respect as law. Thus, I think Fish is wrong that there is no alternative to the intentionality of the author of a provision. The alternative is the intention of the enactors and ratifiers, which will almost always be the public meaning of the words at the time. I leave for others whether Fish or the "textualists" and "strict constructionists" are closer to this form of sophisticated original meaning originalism, which I find a coherent and defensible position (though I don't endorse it). The Constitution is more than a literary text and sometimes modes of interpretation designed for literary texts will be appropriate — and sometimes not.

(Perhaps my other conspirators or Larry Solum over at Legal Theory blog can provide some more informed analysis. In particular, I hope that Randy Barnett, who was the primary expositor and popularizer of the distinction between "original intent originalism" and "original meaning originalism," will weigh in with a closer and more informed analysis of Stanley Fish's argument for original intent originalism than I can give.)