"I don’t know what you mean by ‘glory,’ " Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ "
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a 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 was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!”
This passage was used in Britain by Lord Atkin in his dissenting judgement in the seminal case Liversidge v. Anderson (1942), where he protested about the distortion of a statute by the majority of the House of Lords. It also became a popular citation in United States legal opinions, appearing in 250 judicial decisions in the Westlaw database as of 19 April 2008, including two Supreme Court cases (TVA v. Hill and Zschernig v. Miller).
Also worth noting that all competing ideas emerged from those of crony elitists who sought to enrich themselves by gaining control of the state. Originalists today do not defend slavery, supporters of other theories, ehh…
Absurd of course. Originalists do not just worship the magical words. They delve into the state ratifying conventions so one can see what terms the states thought they were agreeing to. This was the advice of James Madison.
Sure it does. The original document provided for amendments, so it is perfectly logical for an originalist analysis to say that there can be changes. Then when amendments are made, originalist analysis asks what the original meaning of that amendment was. For example, was the original meaning of the equal protection clause of the 14th Amendment just about protecting people from discrimination based on race, or did the original meaning have something else? The originalist analysis for that question focuses on the words and political events of the 1860’s, not the Constitutional Convention of 1787.
My wife is an attorney & was a (low-level) judge. Her standard answer went about like this:The sole product of our legal system is a decision. People bring me problems and I *must *decide. I can *never *punt a case to somebody else.
The written rules (both law and precedent) are almost always a little vague and/or little contradictory if you look closely enough. And are more often a lot vague *and *contradictory even at first glance. Nothing in our process guarantees that legislation, regulation, or precedent are complete or consistent or even entirely sensible.
Deciding whose version of the facts to believe is often far easier than deciding which competing interpretation of law to support. The more finely balanced the choices, the harder the case and the higher up the appellate chain it’ll probably go. The easy obvious ones settle out of court. Even at my low level I only get the tough(-ish) ones.
(a) The Bill of Rights also protects states, both in the 9th Amendment, which recognizes that there can be other rights in addition to the Bill of Rights, which protects rights under state constitutions, and also in the 10th, which provides that some powers are reserved to the states as well as to the people.
(b) As well, two of the other amendments which were proposed as part of the Bill of Rights package but not ratified with the other 10 were regulating the structure of the federal government (size of the House of Representatives and remuneration of Congress-critters, respectively). Since the amendments were put together as a package of 12 by Congress, an originalist analysis of the drafters’ intent was that the Bill of Rights was not just about individual rights. The original intent of Madison and the Congress was to have a package of 12 proposed amendments, some of which explicitly regulated the federal government, and some referred to the states. The fact that the states did not ratify the other 2 at the same time is a factor to consider, but when you’re looking at the original text, as put together by the drafters, the provisions weren’t just about individual rights.
The opening words of the 2nd amendment talk about a well-regulated militia being necessary to the security of a free state. None of the other amendments has a preambular clause like that, and it must mean something.
All of those are factors in trying to interpret the 2nd. Is it a right of individuals to have arms for self-defence, which appears to be the current interpretation? If so, doesn’t that just read out the “militia” preamble? Or, does it mean the right of individuals to hold arms so long as they are part of a well-regulated militia, which gives some weight to the militia preamble? Or, does it mean that the right to bear arms only protects individuals who are part of a well-regulated militia organized by the state?
I would venture that the Constitutional convention was not unlike this discussion. So “originalist” doesn’t really mean original, it includes all changes made ad infinitum. Sounds like a "Living Document " to me. I think I will just ignore the term in the future as ambiguous and meaningless.
You walk on dangerous ground when you consider the historical cultural environment in which the original document and later amendments were made. All that does is to expose what a mean people we can be. The documents are generally supposed to be an improvement on what went before.
That’s not how humans work. No group of more than 8 people have ever agreed on all the details of anything important. And, as we saw in the period from 1789 to 1812, there was indeed a ton of disagreement over the fundamental meanings of constitutional provisions. That’s why smart folks like Scalia aren’t originalists, in that they don’t care what the intent was. They only care what the effect of the text was, and they say you should look to how the text was understood by people in general at the time, not necessarily the framers of the text.
But it’s a sleight of hand. They aren’t actually ignoring intent, because you cannot really do that and still interpret text. And when, as is often the case, the text means different things to different people, they often play amateur historian to pick an interpretation that fits best with conservative ideology.
Those problems aside, what they are certainly not doing is identifying the one real meaning that the authors of the text intended. That is a cartoonish and incorrect understanding of how any interpretation works, including this style of jurisprudence.
Well, you see, sometimes sentences have a meaning based on context (irony alert!). In the context of your reply to igor, you seemed to be suggesting that delving into the history of state ratifying conventions helps originalists to overcome the problem of divergent original intent. I disagree and was explaining why.
Isn’t it common for courts to ask what a “reasonable person” would think? Why can’t one distinguish between what a “reasonable person” would think when the law was written as opposed to what a “reasonable person” would think today?
We can argue about which is the more appropriate tack to take, but can’t we agree that one can reasonably try to do only one or the other?
There were less disagreements about the intent of the Constitution between 1789 and 1812 than there were blatant attempts at usurping power and efforts to squash such usurpations. James Madison, a nationalist, admitted the nationalist cause had been defeated at the convention. That didn’t stop the nationalists from offering new “interpretations” of the document that everyone knew was a thin veil for the nationalists’ program.
Well when a bunch of guys are hashing out the intent of the document, I tend to think that we can get a pretty good idea about the original intent on a practical level, at least one that can justify an opinion. When people engage in discussion it often turns out that the line between what they agree on and disagree on is made clearer. This is true of any contract. That is why there is a discussion of terms before contracts are signed, to prevent misunderstandings. To argue against this in other areas of life would be obviously wrong. Perhaps this is why Madison made his very wise suggestion.
Of course if you suggest there is a sort-of metaphysical problem of divergent intent, I don’t think I’m compelled to argue that in can be overcome.
It was an outright win! The free states (or low slave population states, since many northern states at the time allowed slavery too) believed that the population of citizens should be used to determine the number of congressional representatives. The South thought that even though some of their population technically qualified as furniture, not humans, and could not vote, they should count toward the number of representatives in congress. Any number greater than 1/2 probably counts as a win.
Some of the wording of some elements of the constitution may be weasely. Also keep in mind that the people writing this did it longhand. There were no multi-thousand page Obamacare or Free Trade laws in those days. Things were kept short and succinct.
But if you want to go originalist - consider the tenth amendment - “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. Does that mean everything? Or only things that the people who wrote that clause could conceive of? Does that mean wiretapping is strictly a state concern, for example? The framers could not have anticipated it… and so on.
I was being nice, if you read the rest you’d see that i said if it was up to me, there’d be no compromise, you’re not counting slaves to your benefit.
Not only are you not counting them, you’re not having them period.
Though that may have been the wrong answer at the time as well, left to me there’d probably be no country i’m guessing. If there was, it would wind up a lot smaller.
I agree that it is sometimes very different to discern original intent or even the meaning of text, but at least that type of interpretation is attempting to find a rule that is grounded in what we all agreed upon at the founding.
This “living constitution” idea simply turns into the policy preferences of the individual Justices. I know I harp on same sex marriage all of the time, so lets just take the death penalty. We all know that the Constitution allows for the death penalty: it says so right in the text.
However, many Justices argue that the death penalty should be a violation of the Eighth Amendment. Such a view simply cannot be squared with the Constitution. When a judge says that the death penalty violates the Constitution, what he is saying is “I don’t personally believe in the death penalty, so I must now make my view fit into this square hole somehow”
