There is a lot of debate over whether we ought to even care what the framers were thinking when they wrote the Constitution. Some of the framers themselves said no!

Oh dear… where are they going with this?


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There are now 8 comments... what are your thoughts?
  1. SeanR says

    Are we into the “militia means the National Guard, these days” argument, now?
    I can say I seriously dislike that argument. It seeks to make judges of lexicographers.

    • …It’s also the weakness I perceive in the Common Law. At what point of assuming a law exists does that law exist? It seems easier to create a law by convincing people it was always a law, and convincing the police to prosecute those on the margins of your new rule, where it intersects other things, than to actually through the trouble, and uncertainty, of passing said law.

      I hear, anecdotally, of many cases where the police arrest someone on a mis-reading, misunderstanding ,or just a mistaken belief in the law, and I have to wonder how much of a chilling effect does it take before the courts would back up such a interpretation. Further, also anecdotally, I hear of laws that were tightened and re-written in ways that would appear to have run afoul of then-current beliefs in what the law can do, but because the law has managed to govern the behavior since, it now seems acceptable to extend other, once less certain powers, over them.

      For now, I’ll ask. At what point did a license to convey 3rd party property become legally necessary to operate on the nations roads? At what point did it become acceptable to REQUIRE every new-made vehicle have a unique serial number?

  2. SirExal says

    So all of constitutional law is one big Rules-as-Written vs. Rules-as-Intended debate, huh?

  3. >At what point did a license to convey 3rd party property become legally necessary to operate on the nations roads? At what point did it become acceptable to REQUIRE every new-made vehicle have a unique serial number?

    Wikipedia says VINs were first used in 1954, but the federal government didn’t standardize them until 1981 (which implies that manufacturers already thought they were a good idea before the feds stepped in). Driver’s licenses vary by state and locale, but the earliest were Chicago and NYC in 1899.

    I’m not sure how either of those are examples of “convincing people it was always a law” or “convincing the police to prosecute on the margins of your new rule.” It seems like there’s a very clear start point for these standards – at first you could drive without restrictions, then they passed a law, and now you need to get a license. Where’s the “margin” there?

  4. Going by the literal text of the constitution, the restriction that the president has to be at least 35 etc. only applies to people, so you can have a dog be president. I think we need to allow some interpretation.

  5. Gregory T. Bogosian says

    We need to ignore the dictionary when a word ought to mean something else? Imagine if we applied that to other legal documents. When you see something obviously wrong with a statute, you don’t implore people to interpret it a different way. You ask your representatives to change it. When you see a supreme court opinion that you disagree with, you ask that it be overturned. We ask that the actual words of the law change when we see any other aspect of it that we disagree with. So why should the constitution be different?

    • It’s important to understand that dictionaries do not dictate (heh) what the meanings of words are: they report on what the meanings of words are. In other words, they’re like a newspaper, telling us what happened, rather than an author, deciding what will happen. Especially English. Dictionaries evolve as the language evolves through common usage. People constantly invent new words: when their use becomes widespread, the dictionary includes them. When the meaning of a word transforms, dictionaries eventually capture the new meaning.

      For example, “bad” used to always be a negative. But in the 1980s, see: Michael Jackson “I’m Bad” vs. Huey Luis “Sometimes, Bad is Bad” … and subsequently, the tenth definition of the word on Merriam-Webster:

      Note also that many words have both a “denotative” meaning – a dictionary definition, basically – and a “connotative” meaning – meaning which is implied, an emotional aspect to the word, sometimes conveyed or modified by context. Denotatively, “fire” refers to the incandescent gasses produced by exothermic reactions. Connotatively, it means passion, warmth, safety… and danger, destruction… and cleanliness, renewal… it evokes images of the hearth and home, the word is used in many metaphors about love and desire, but also danger and destruction.

      Some more “clinical” or technical words have little or no connotative meaning; words like “pipette” and “driveshaft” and “thorax.” But like it or not, many of the words used in the Constitution, and in other legal texts, do. So much so that many contracts and other legal documents begin with a (sometimes futile?) attempt to nail down and define critical terms that could otherwise be ambiguous. And of course, legal scholars debate endlessly (and occasionally agree) the complete, technical (in a legal sense) definitions of words, often reaching conclusions that are substantially different to what a layperson might assume.

      So… yeah. Words are for communicating ideas and can only be as clearly defined as those ideas are; and many of our ideas are fuzzy, inconsistent and bearing varying connotative meaning from person to person, region to region, and across time: and dictionaries are only an imperfect attempt by scholars to try to document those meanings, as best they can.

      • Those are all valid points. But I don’t think that you have really addressed the key issue. None of that tells us how to interpret the constitution. I think that we should interpret it based on what the people who ratified it thought it meant. A country’s constitution is at its base a contract between all the political powers within it. A contract’s meaning is ultimately decided by what the signatories thought they were agreeing to.

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