Time for a new subject

[Volokh, Eugene]

        I'd be hesitant to just casually infer what the Framers "almost
certainly did not think about" on this score.  Thirty-five years before the
Constitution (and thirty before the Articles, in which "weights and
measures" first appeared), the British Empire shifted from the Julian
calendar to the Gregorian, and there was apparently an Act of Parliament
that implemented this, An Act for Regulating the Commencement of the Year,
and for the Correcting the Calendar Now in Use, 24 Geo. 2, c. 23, 1 (Eng.)
(1751).  I don't know whether this sort of thing was treated as a matter of
"weights and measures" in the language of the time, which would surely be
relevant; if others know about this, I'd love to hear it.  But I wouldn't
lightly assume that regulation of time was outside Congress's contemplation.

        Eugene

> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Monday, November 04, 2002 2:45 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Time for a new subject
>
>
> A question for "original intent buffs" (no insult intended):
> Of what relevance is it that the Framers of the "weights and
> measures clause" almost certainly did not think that it would
> be applied to time, since the notion of "standard time" was
> almost a hundred years away.  I assume that this is no
> problem for many originalists, since "measures" could be said
> to mean whatever any Congress at any time reasonably views as
> a "measure," but, of course, the same thing might be said
> with regard to the judicial interpretation of such terms as
> "cruel and unusual punishment" or "due process of law," and
> it is my distinct impression that both Scalia and Thomas are
> insistent that such terms (not to mention "commerce") be
> interpreted in light of their 1787-1791 referents.   And what
> if someone
> dug up some speeches at ratification conventions referring to
> the ability to set time as one of the fundaments of state
> sovereignty, similar, say, to the ability to decide on one's
> state capital.  Obviously, I don't really think that any
> state will try to renounce standard time, so this discussion
> is truly academic in what may be a pejorative sense.  But I
> am (more or
> less) seriously trying to figure out the potential
> implications of the "new federalism" decisions, not least
> because I literally have no idea if, say, Garcia represents a
> new "settlement," modified by NY and Printz, or if they are
> the equivalent of Jones & Laughlin, to be succeeded by a much
> more radical, Darby-like, set of cases if conservative
> Republicans bolster their hegemony and replace Stevens and
> Ginsburg with, say, Luttig and Owens.
>
> sandy
>
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