It is a written Constitution that we are interpreting

Robert Sheridan rs at robertsheridan.com
Tue Sep 21 08:14:15 PDT 2010


  Words change meaning incrementally over time.  This is our process; 
it's a definitional one.  See:

Marbury, where Marshall describes the heading of this thread, "It is a 
Constitution that we are interpreting," and proceeds to do just that, 
explaining that if this is so, then here's what follows.  After that, 
it's law.

Again Marshall, in Ogden, where he defines "commerce" in Art. I, Sec. 8, 
Cl. 3, to mean transportation of humans on steamboats on the Hudson, as 
opposed to the previously understood trade in goods, not people.

Again in the post Lochner era where manufacturing, once deemed local 
(and thus exempt from Congressional regulation), is now understood to be 
in the stream of commerce and thus subject to all the regulation 
Congress can pass.

Equality?  See Amend 14 and the cases since the War.

The point is that our whole constitutional process consists of 
redefining words, concepts, laws, constitutional text, whatever, to suit 
the demands of justice in the more modern context.  This is why we study 
cases rather than 17th C. English common law.  We don't really care, at 
least not very much, except for some of us, what the signers thought in 
background.  We thank them for that and carry on by our own lights, not 
theirs.

Anyone professing to rely primarily on what the framers thought as to 
the meaning of due process or the amenders as to the Bill of Rights or 
the 14th, for example (different amenders), is engaged in a futile 
infinite regress, for there is no stopping once going down this muddy 
track.  I wouldn't recommend it unless you have lots of time and aren't 
much interested in practical results.  Read the cases, however, and you 
time travel step-by-step from way back when to today and tomorrow.

One of the reasons I have trouble with positions taken by Jon, the TPM, 
and Randy's proposed Repealer amendment is that they seem to give 
license to saying, "Forget all that (incremental reinterpretation, such 
as above), let's just interpret the Constitution my way, the way the 
Founders intended."  We don't even give the Author of the Ten 
Commandments that much deference.  As the man said, the Ten Commandments 
is it, all the rest is just commentary.

When the Court refers to the Framers, it usually does so in the very 
limited context of a particular doctrine under consideration, not a 
wholesale, "The Framers thought this about everything according to 
common law, therefore...."  See Scalia in Crawford on hearsay where he 
goes back to Raleigh's case in London, dealing with individual strands, 
not the whole hawser, as the Repealer amendment proposes.

Ignoring two hundred years of constitutional development wholesale makes 
me suspect that Tea-baggers aren't peddling tea, but Kool-Ade.

rs



On 9/21/2010 7:49 AM, Jon Roland wrote:
> They themselves consulted more than the text. They didn't put cites in 
> the Constitution, but they did put cites in their commentaries on the 
> text.
>
> An example of this can be seen in the comments by Dickenson in the 
> Federal Convention Aug. 29, 1787 
> <http://www.constitution.org/dfc/dfc_0829.htm>, about /ex post facto/ 
> only applying to criminal cases, after researching the topic in 
> Blackstone's /Commentaries 
> <http://www.constitution.org/tb/tb-0000.htm>/. The fact that they had 
> to look up the authorities for usage of their own language tells us 
> that we must do the same. So since we can presume the Founders mostly 
> agreed on the writers they considered authoritative on legal usages, 
> we can reasonably refer to the writings of those other writers to find 
> the meanings the Founders intended even if the Founders themselves had 
> not yet done the research to fully master the concepts.
>
> This is just basic methods used by professional historians, applied to 
> legal documents.
>
> On 09/21/2010 09:28 AM, Robert Sheridan wrote:
>> The Framers wrote the damn thing for the likes of me and the rest of 
>> us to use and I doubt they expected us to consult more than the text. 
> -- Jon
>
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