Non-originalist opinions

[Earl Maltz]

I think it depends.  The original meaning (or understanding) might be 
that constitutional language required or barred a list of specific 
practices which are understood to be fixed at the time of 
enactment.  (The list of those practices might or might not be 
unclear at the margins.)   Alternatively, the language might be 
understood to create a general principle whose specific meaning would 
change over time.

At 11:53 AM 4/23/2009, Mark Graber wrote:
>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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