Bound by Constitutional Text?
mallapollack3 at gmail.com
Thu Sep 23 11:02:25 PDT 2010
(a) NEW MAJOR POINT - Do you really want to say that if the Supreme Court
can't determine an "original meaning" it should not rule? That means that
any action the government takes (related to such a clause) is totally
unconstrained by the Constitution. If you mean that the Court can rule, but
the government can't act, you are permanently giving legal effect to the
(b) minor point - I disagree about the extent to which the original meaning
(in any sense) is known at any useful level of generality.
(c) repeated point - I disagree with you view of the meaning of a text.
1) I was overly brief, I would have thought my meaning was clear, but let me
add all the words I thought implied:
"The dead cannot bind the living to accept a constitution." Or more
generally, "I (any living human) am not bound by my long-dead ancestor's
promise that I would do something." (Limits caused by grant of limited title
or power over property show that I lack power, not that I am bound by the
On Thu, Sep 23, 2010 at 12:48 PM, Christopher Green <crgreen at olemiss.edu>wrote:
> "[T]he dead can't bind the living."
> Sure they can, if they entrust their property to others who extract binding
> promises as the price of being able to enjoy the property. Qui facit per
> alium facit per se.
> "[N]o objectively ascertainable original meaning actually exists for the
> complex of persons who either ratified or accepted the text originally."
> Surely that's not true for *all* interpretive questions, even all
> interpretive questions that seem hard at first blush. But even for the
> parts of original meaning that can't be ascertained, that just means we're
> ignorant of the content of the Constitution. If Timothy Williamson is right
> that knowledge is the norm of assertion, then judges who don't *know *the
> content of the Constitution on an issue are wrong to make assertions about
> that content. Constitutional ignorance should be disempowering, not
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Malla Pollack
> *Sent:* Thursday, September 23, 2010 11:22 AM
> *To:* jon.roland at constitution.org
> *Cc:* conlawprof at lists.ucla.edu
> *Subject:* Re: Bound by Constitutional Text?
> Sorry, but since (1) the dead can't bind the living, and (2) no
> objectively ascertainable original meaning actually exists for the complex
> of persons who either ratified or accepted the text originally (Two
> independently sufficient reasons), we are all left in the real world of
> second best solutions. Judges cannot judge without using their judgment.
> So-called originalists merely hide this.
> On Thu, Sep 23, 2010 at 11:14 AM, Jon Roland <jon.roland at constitution.org>wrote:
>> Or to mean something entirely different and inconsistent with the original
>> meaning? That is the problem. Once the tether is broken to original meaning,
>> there is no longer any limit to where it can be taken, and what was
>> interpretation of the Constitution becomes only interpretation of the latest
>> court precedent. If we have committed to upholding the Constitution, but the
>> meaning of its words is whatever judges (or other officials) say it is, then
>> we have amended it to add an additional mode of amendment, and that may
>> consist of amendment by every judge and official who enjoys some kind of
>> As someone who has taken the oath to "preserve, protect, and defend" the
>> Constitution, and not precedent, I feel bound to reject such revisions,
>> regardless of whether I agree with all the provisions of the original
>> Constitution as properly amended. All of the flaws I find can be fixed, as I
>> propose <http://constitution.org/reform/us/con_amend.htm>.
>> I am cognizant of The Paradox of Self-Amendment: A Study of Law, Logic,
>> Omnipotence, and Change<http://constitution.org/lrev/psuber/paradox_self-amendment.htm>,
>> by Peter Suber, Philosophy Department, Earlham College. What that presents
>> is the conceptual need for higher-order constitutions of nature, society,
>> and the state <http://constitution.org/soclcont.htm> to which the written
>> constitution of government is subject. In other words, the constitution to
>> which I am taking the oath must remain consistent with those higher-order
>> constitutions, which include the principles of sound constitutional design.
>> Amendment by court decision is a violation of those principles of design.
>> See also Mostly Unconstitutional: The Case Against Precedent Revisited<http://constitution.org/lrev/glawson/glawson_mucapr.htm>,
>> Gary Lawson, 5 *Ave Maria L.R.* 1 (2007).
>> On 09/22/2010 09:56 PM, Robert Sheridan wrote:
>> 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?
>> -- 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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> Please note that messages sent to this large list cannot be viewed as
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