Bound by Constitutional Text?

Malla Pollack mallapollack3 at gmail.com
Thu Sep 23 11:02:25 PDT 2010


2) Humm.
(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
status quo.
(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
promise.)
Malla

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
> empowering.
>
>  ------------------------------
> *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.
> Malla
>
> 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
>> deference.
>>
>> 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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>
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