Non-originalist opinions

[Mark Graber]

The example is more complicated than Professor Scarberry suggests.

Consider the language of the amendment.  I take it that no controversy is likely to exist if the framers use language that is not subject to much interpretation.  Consider an amendment that increased the number of state representations in the Senate to 3.

Suppose, however, the amendment declares "Government shall not interfere with personal decisions."  What are personal decisions?  First, we may discover that the persons who framed and ratified the amendment did not agree on what specific personal decisions were covered.  Second, we may discover that they did not even agree on the broader general principle that was being constitutionally enshrined.  To put things in Balkinian terms, disputes existed over both the principle and application.  Third, while agreeing on both principle and application, they may have thought that future generations only be bound by the principle.  I suspect I could tell this story with a great many constitutional amendments.  What we call constitutional change, from this perspective, may be better understood as generated by original practices than rejections of those practices.

Mark A. Graber

>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 04/21/09 7:27 PM >>>
Suppose an amendment to the Constitution is proposed this year and
ratified by sufficient states in 2010 to become part of the
Constitution. Would anyone deny that the amendment should be interpreted
to mean what the ratifiers in the states reasonably thought it meant
when they ratified it, if such a meaning can be found? What about an
amendment ratified five years ago? Ten years ago? At what point does the
meaning change to what someone, or perhaps five of nine Someones, think
the amendment should mean?
 
Mark S. Scarberry
Pepperdine University School of Law
 
P.S. If the new meaning is supported by seven-of-nine, would resistance
be futile? (With apologies for the Star Trek reference...)
 

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