Constitutional Interpretation. Again.

[Gfactor]

*Marsh * involved a challenge to to the practice of opening sessions with prayers by a state-employed clergyman. It was challenges as an establishment of religion. The Court decided it was not one.

Here is the punchline:

Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.

FindLaw's United States Supreme Court case and opinions.

The Court considered the practices of early legislatures, including Congress, as evidence that the drafters did not intend to bar such practices when they wrote the First Amendment. Again, the Court was not focusing on the text, but on history.

So if Bush means by “interpret the Constitution” figure out what was acceptable during the drafting of the Constitution, wouldn’t the best appointees be trained historians instead of lawyers?

Of course, there are plenty of criticisms of the originalist theory of constitutional interpretation, but my point is that the intention of the drafters and the language of the document might well conflict. What then?

[Gfactor]

A couple of fun examples:

Regina v. Ojibway (hypothetical case) (man held guilty of killing a small bird when he shot a horse with a pillow on its back because statute defines bird as a two-legged animal covered with feathers). My favorit bit:

It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purpose of the Small Birds Act, all two legged, feather covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multi-legged animals as well. Counsel submits that having regard to the purpose of the statute only small animals “naturally covered” with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase “naturally covered” would have been expressly inserted just as “Long” was inserted into the Longshoreman’s Act.

Nix v. Hedden (real case–SCOTUS determines that tomatoes are vegetables for purposes of statute taxing vegetables).

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

So by “vegetable,” Congress meant, “main course”?

[rfgdxm]

@Gfactor

Nix v. Hedden (real case–SCOTUS determines that tomatoes are vegetables for purposes of statute taxing vegetables).

So by “vegetable,” Congress meant, “main course”?

“War is Peace”.

[Gfactor]

@rfgdxm

“War is Peace”.

When I use a word," Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean–neither more nor less.”

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master. That's all."

['Alice Through the Looking Glass', Lewis Carroll, 1872]

Granted, this is an administration that doesn't want us to believe what they said. They want us to believe what they SAY they said.

[Ellen Goodman, Boston Globe, May 2, 2004]

http://counterpunch.org/cloughley05082004.html