Cheney and intent

[Garrett Epps]

> Obviously the
> framers of the Constitution lived in a far different world in which people
> were definitely from someplace. Many people today live in one state and
> work in several; the rich often own more than one residence.
>

Without criticizing the larger point, I do want to point out that it's not
really obvious that in the days of the Framing everybody lived in one and
only one place and now people can live in more than one.  Certainly in the
history of the South one frequently comes across figures who had plantations
in one state and yet spent their time in another, or who moved often (my
favorite was a guy who built plantations in five different states,
progressively moving Westward as the cash-crop agriculture he practiced
destroyed the soil).  Not all of these were aristocrats at all--such people
as tinkers and seamen often lived away from "home" for long periods.  I am
not sure the law needs new concepts to solve the problem of where a given
person is an "inhabitant."


"Michael A. Bellesiles" wrote:

> I hope that no one minds if I put in a question only tangentially related
> to where Dick Cheney lives (or does not live). I am most interested in the
> issue of original meanings and how we arrive at them. Obviously the
> framers of the Constitution lived in a far different world in which people
> were definitely from someplace. Many people today live in one state and
> work in several; the rich often own more than one residence. But do we
> need to adhere absolutely to the original meaning of the words in the
> Constitution on this matter?
> When I reviewed Justice Scaliaís remarkable book A Matter of
> Interpretation: Federal Courts and the Law (Princeton, NJ, 1997), I
> praised its precision of thought, but came down to what I thought was the
> one key qualifier. Justice Scalia says that ìWhat I look for in the
> Constitution is precisely what I look for in a statute: the original
> meaning of the text, not what the original draftsman intended.î He wants
> to read the words in their precise contemporary meaning and feels that
> this is really a rather easy task, but one which requires that we explore
> the historical context carefully. He does admit that ìSometimes (though
> not very often) there will be some disagreement regarding the original
> meaning.î (I of course think of the single sentence in the Second
> Amendment as an intriguing example of that disagreement.)  ìAnd
> sometimes,î he continues, ìthere will be some disagreement as to how that
> original meaning applies to new and unforeseen phenomena.î
> It seems to me that ìunforeseen phenomenaî is a rather large loophole.  I
> am fairly confident that almost every aspect of our modern society would
> come as a largely unforeseen phenomena to every single author of the
> Constitution and its first amendments.  How do we measure ìunforeseen
> phenomenaî? How can we determine when it should be taken into
> consideration and when not? Justice Scalia would leave such determinations
> up to the Supreme Court and its ìexercise of judgment.î But isnít that
> allowing the Court to be a legislative body, which is anathema to Justice
> Scalia? Of course if no one brings an action, the point is moot. But in a
> way Iím surprised that there has not been even more discussion of this
> issue of what may be the archaic aspects of the Constitution. I still
> havenít quite worked this one out to my own satisfaction, so I would
> welcome your thoughts. Forgive me if this is a topic oft discussed prior
> to my joining your list. Thanks, Michael B.
> Michael Bellesiles
> Department of History
> Emory University
> Atlanta, GA 30322
> 404) 727-4467  fax (404) 727-4959
> mbelles at emory.edu

--
Garrett Epps
Associate Professor
University of Oregon School of Law
357 Knight Law Center
1221 University of Oregon
Eugene OR 97403

PHONE: (541) 346-1578
  FAX: (541) 346-1564

gepps at law.uoregon.edu
Trouble sleeping? Try my latest works:
http://www.law.uoregon.edu/faculty/epps/default.html

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