M: Now help me out here. I need some terminology for something that seems like a basic idea, but seems to escape other people and myself in terms of what... in terms of getting across the primary concept. Basically, there's been a lot of originalist, quote-unquote, Supreme Court talk about what the founding fathers would or wouldn't do. And there is a lot of equivocation between two categories which I cannot for the life of me figure out how to distinguish quickly, but which are conceptually easy. See, the current topic was the idea that, okay, there's the idea that incompetent people cannot testify on their own behalf, and that's conceptually solid. But they also were going with the idea that the originalists also thought that women were incompetent and therefore could not testify on their own behalf. And that's the other category. So it's like the parts that make sense logically and then the parts that are contextual filters of what is understood to be or not be in terms of fact. So one of them is a definition of slots in an argument, definition of blank spots in the Mad Libs, and the other is a definition of what actually is allowed in those Mad Libs. But at the moment, for the life of me, I cannot come up with the correct terminology to be able to deal with this.
G: You’re pointing at a category error that originalism commits constantly, and you’re right that it’s conceptually simple but linguistically slippery. The problem is that people collapse structure-level rules with content-level beliefs, and then pretend they’re the same thing.
Here are clean, fast terms you can use, depending on how formal or punchy you want to be.
Structural rule vs. historical instantiation
or
Formal capacity vs. contingent belief
That’s the core split.
This is the Mad Libs template.
These are role definitions, not people.
Other good labels:
This is the logic of the system.
This is who the framers thought fit the slot.
These are empirical beliefs, not logical necessities.
Other good labels:
This is the data they plugged into the system.
Originalism quietly treats:
Mistaken instantiations
as if they were
Structural requirements
That’s the error.
They act as though:
When the correct reading is:
These land well in legal or philosophical settings.
Originalists confuse token error for type definition.
They didn’t design exclusion; they suffered epistemic blindness about facts.
The rule is stable.
The overlay is historically rotten.
The Constitution sets norms.
The framers supplied flawed descriptions of reality.
“Originalism repeatedly confuses formal structure with historical instantiation, treating the framers’ empirical mistakes as if they were logical requirements of the system.”
That sentence does a lot of work.
Or, more bluntly:
They’re treating bad data as hard-coded logic.
If you want something sticky and mildly academic:
Instantiation Collapse
Meaning:
The collapse of contingent historical examples into supposedly binding structural rules.
It’s not standard, but it’s legible, defensible, and precise.
If you want, next we can: