mallapollack3 at gmail.com
Tue Sep 21 09:08:27 PDT 2010
" The point is to find out what the official deal was. But the deal was
struck in Philadelphia and the ink was dry thereafter." I did not sign off
on this deal. Therefore, I am not bound by it. The ratifiers also did not
sign off on the "real deal" according to you -- in fact, the sales men all
committed fraud (negating any contract formation). Therefore, as I and many
others have argued for many other reasons as well, the only "deal" that is
binding on any generation is what that generation is willing to accept.
On Tue, Sep 21, 2010 at 11:01 AM, Calvin Johnson <CJohnson at law.utexas.edu>wrote:
> My personal view is that anyone who considers Ratifier intent to be
> determinative has not read enough of it. It is filled with doggerel we don’t
> find funny, turgid prose you read and say, “What was that?,” lots of
> repetition of arguments better stated elsewhere and lots of
> misunderstandings. They raise things we don’t find primary, but they did.
> Common pattern was “enough about the C, let me tell you about me.”
> There was a population of 3 million and so we had 4.5
> million interpretations of the meaning text in the ratification. If you
> want a single binding interpretation you need to go to Philadelphia. They
> labored over agreed upon text, delegated and redelegated to committees to
> try to get over impasses and reach common ground. The single text may not
> have pulled in the interpretations all that well, but it helped. After
> Philadelphia there was never again a discipline to reach a single text.
> Both sides willfully misinterpreted the document in public. The
> Antifederalists claimed that Heaven would fall in every clause, to defeat
> the overall. The Federalists claimed this revolution was just ordinary
> extension of what we agree on, to get the thing passed. Neither side had
> need to compromise to change the text, because they could not change
> anything once it had left Philadelphia. Neither side was sincere except
> wanting their side to win by saying anything. You can say Virginia or New
> York misunderstood the Constitution, because that is plausible. But you
> cannot say that Philadelphia misunderstood the C because their understanding
> is the C.
> It is much like the man who buys a Porsche after
> considering a Lexis or Mercedes. He is sovereign. His rejection of The
> Mercedes was complete. If he had rejected the Porsche that would have
> counted. But if you want to understand how the engine works, you have to
> ask the engineer, because the sovereign buyer never opened the hood or would
> have known what he was seeing if he had. So too the Ratifiers do not know
> the engine of how any clause works or its history, even though they said yes
> or no on a grand overall basis.
> The point is to find out what the official deal was. But
> the deal was struck in Philadelphia and the ink was dry thereafter.
> Calvin H. Johnson
> Andrews & Kurth Centennial Professor of Law
> The University of Texas School of Law
> 727 E. Dean Keeton (26th) St.
> Austin, TX 78705
> (512) 232-1306 (voice)
> FAX: (512) 232-2399
> Website with links to publications:
> For reviews, and chapters of Johnson, *Righteous Anger at the Wicked
> States: The Meaning of the Founders Constitution* (Cambridge University
> Press 2005) see
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Jon Roland
> *Sent:* Tuesday, September 21, 2010 10:45 AM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* Re: It is a written Constitution that we are interpreting
> Words don't contain meanings. Meanings are assigned to them by
> interpreters. However, that doesn't mean interpreters are free to assign any
> meanings they might want. As I explain in a blog post<http://constitutionalism.blogspot.com/2007/02/new-years-greeting.html>
> A word or statement has several meanings:
> 1. The meaning it had for the writer when he wrote it.
> 2. The meaning it had for the reader when he read it.
> 3. The meaning the reader thought it had for the writer when he wrote
> 4. The meaning the writer thought it would have for the reader when he
> read it.
> 5. The meaning the reader thought it should have had for the writer if
> the writer knew what the reader does.
> 6. The meaning the writer thought it should have for the reader if the
> reader knew what the writer does.
> 7. The meaning the reader thought the writer thought it would have for
> the reader when he read it.
> 8. The meaning the writer thought the reader thought it would have for
> the writer when he wrote it.
> 9. The meaning it has for the reader upon further reflection, perhaps
> years later.
> 10. The meaning it has for the writer upon further reflection, perhaps
> years later.
> And then there are the meanings that third parties think the writer and the
> reader had at various stages in their evolution.
> A commitment to a law, such as a constitution, can only be to (1), where
> the ratifier is considered the writer. If we abandon that for allowing
> anyone to change the meanings of terms without constraint, then law loses
> all meaning as a command which we are bound to obey, and all we have left is
> the arbitrary rule of men.
> On 09/21/2010 10:14 AM, Robert Sheridan wrote:
> Words change meaning incrementally over time. This is our process; it's a
> definitional one.
> -- Jon
> Constitution Society http://constitution.org
> 2900 W Anderson Ln C-200-322 Austin, TX 78757
> 512/299-5001 jon.roland at constitution.org
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