Bound by Constitutional Text?

[Christopher Green]

"Isn't one of the primary duties of the Supreme Court to define the meaning
of words that originally may have meant one thing, but that through time and
circumstances should now be taken to mean something additional?"
 
I don't think so--see http://ssrn.com/abstract=1227162 at 1657-66.
 
"Previously the word was most commonly understood to mean the trade of
goods; now it was held to mean the ferrying of passengers."
 
I don't think Marshall says that himself; he certainly didn't claim a right
to update the meaning of constitutional terms explicitly.

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan
Sent: Wednesday, September 22, 2010 9:56 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Bound by Constitutional Text?


Isn't one of the primary duties of the Supreme Court to define the meaning
of words that originally may have meant one thing, but that through time and
circumstances should now be taken to mean something additional?  

Isn't this one of the main points, if not THE main point of the redefinition
of 'commerce' in the Steamboat case, Gibbon v. Ogden?  Previously the word
was most commonly understood to mean the trade of goods; now it was held to
mean the ferrying of passengers.  Marshall gives as broad a scope to the
meaning as he possibly could.  Wickard v. Filburn goes him a step further
with its 'aggregation' theory that considers potential reactions of market
players as part of commerce, hence Congress' power to regulate.

Didn't 'manufacture' go from local to general by the introduction of the
concept of 'stream of commerce?'

It's amazing what you can do with word play, especially if someone's
interpretation amounts to legal writ.  The losers, meanwhile, tear their
hair out.

Sometimes words conjure up meanings you'd never have imagined, as I've
recently been reminded, and thanks, I think...

rs



 

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