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Old 08-28-2019, 08:35 PM
Northern Piper is online now
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Originally Posted by thorny locust View Post
But I am quite certain that they wouldn't all say the same thing.

Originally Posted by Moriarty View Post
It would be a drastic mistake to presume that all of the Founding Fathers would agree on what the words of the constitution meant - it was borne out of compromise, not necessarily consensus.
And this. Many time, this. Except I would say that a series of compromises can be accepted by a general consensus, even if not everyone agrees on it all.

I once interviewed one of the politicians who had a major hand in drafting the Patriation package of constitutional amendments that brought Canada's constitution home from Britain in 1982. And that was what he emphasized: that everyone in the room had to give way on some points, that no-one got everything they wanted, and that everyone in the room disliked something in the final version. Not that everyone disliked the same things, of course, but rather that no-one was completely satisfied. But overall, there was consensus to accept it (except, of course, for the fact that the Quebec delegation rejected the package entirely.)

So I asked him the natural follow-up question: since there were things in the final package he disagreed with, if he could go back and change something, what would he change? His response? "Not a thing." It was the overall package that attracted consensus (and even that was a flawed consensus, as Quebec dissented). But his basic point was that in constitution building, there will never be unanimity. At best, there will be consensus, and consensus is what is necessary to get it passed. He accepted that everyone gave up something to get the final deal that attracted the most support, and if he had the power to change it, it would have unraveled.

And even then, even with a consensus, there will be disagreements. Farrand records that after the deal was done in Philadelphia, and the delegates were leaving, a discussion came up about education. One of the drafters said that he hoped the new federal government would establish a national university. Another delegate interrupted and said that the Constitution wouldn't give the federal government the power to create universities. And then they both pointed to different parts of the text that they had just drafted and agreed on, to support their position.

Thinks about it: if you've ever been in a group of about 30 or 40 people, and polled them on an issue, have you ever got unanimity? And not on general terms, but if the question is one of detail, and carries issues of social policy? Why would it be any different for the guys at Philadelphia?

That to my mind is the deep flaw in originalism. It assumes unanimity, when really there was only consensus.
"I don't like to make plans for the day. If I do, that's when words like 'premeditated' start getting thrown around in the courtroom."

Last edited by Northern Piper; 08-28-2019 at 08:38 PM.