Ratifier Intent.

Tue Sep 21 10:57:39 PDT 2010

But unpacking "this Constitution" tells us what officials are bound to in
the Article VI oath--as I see it, the meaning historically expressed by the
constitutional text.

  _____  

From: Malla Pollack [mailto:mallapollack3 at gmail.com] 
Sent: Tuesday, September 21, 2010 12:41 PM
To: Christopher Green
Cc: conlawprof at lists.ucla.edu
Subject: Re: Ratifier Intent.

I think that Christopher Green's point goes to being bound, not to the
meaning of the document  one swore to uphold.
Malla 

On Tue, Sep 21, 2010 at 12:29 PM, Christopher Green <crgreen at olemiss.edu>
wrote:

I agree that normal people today aren't bound in any significant way by the
Constitution.  But officials who swear the Article VI oath to support "this
Constitution"--which the Preamble and Article VII make clear is the
Constitution of the ratifying conventions--are "bound."  See
http://ssrn.com/abstract=1227162.  Any 1787 or 1788 fraud isn't relevant to
whether current-generation officials should keep their oaths.

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Malla Pollack
Sent: Tuesday, September 21, 2010 11:08 AM
To: Calvin Johnson
Cc: conlawprof at lists.ucla.edu
Subject: Re: Ratifier Intent.

" 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.  
Malla 

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:
http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For reviews, and chapters of Johnson, Righteous Anger at the Wicked States:
The Meaning of the Founders Constitution (Cambridge University Press 2005)
see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

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
it. 

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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