{"id":5211,"date":"2017-12-21T08:00:28","date_gmt":"2017-12-21T13:00:28","guid":{"rendered":"http:\/\/lawcomic.net\/guide\/?p=5211"},"modified":"2023-11-03T18:03:17","modified_gmt":"2023-11-03T22:03:17","slug":"46-ideas-about-interpretation","status":"publish","type":"post","link":"https:\/\/lawcomic.net\/guide\/?p=5211","title":{"rendered":"46. Ideas About Interpretation"},"content":{"rendered":"\n
\"There<\/figure>\n\n\n

\u00a0<\/p>\n

<\/p>\n

Chapter 2: What Were They Thinking?<\/p>\n

Page 46: Does it matter?<\/p>\n

Sis trying to plug modern technology into a leather book from 1787<\/em><\/p>\n

SIS<\/em><\/p>\n

We can’t run a\u00a021st<\/strong>-Century country with an\u00a018th<\/strong>-Century mindset…<\/p>\n

Society<\/strong> would break!<\/p>\n

AVERAGE JOE<\/em><\/p>\n

Yes, but…<\/p>\n

Assorted judges<\/em><\/p>\n

JUDGES<\/em><\/p>\n

But what?<\/p>\n

We apply the Constitution to\u00a0this<\/strong> world. If it’s to be\u00a0meaningful,<\/strong> its words must mean what we think they mean\u00a0here!<\/strong><\/p>\n

Or what they\u00a0ought<\/strong> to mean?<\/p>\n

What we can\u00a0make<\/strong> them mean!<\/p>\n

I mean…<\/p>\n

…Hey, that’s mean<\/p>\n

James Wilson arguing with a modern judge<\/em><\/p>\n

JAMES WILSON<\/em><\/p>\n

You mea- uh, unelected judges…\u00a0rewriting<\/strong> the Constitution? Who died and made\u00a0you<\/span> sovereign?<\/p>\n

If\u00a0you\u00a0care<\/strong> what we were thinking, this is precisely the kind of power grab we were trying to\u00a0prevent.<\/strong><\/p>\n

MODERN JUDGE<\/em><\/p>\n

No, you misunderstand!<\/p>\n

We’re only re-interpreting<\/strong> the language, so it can apply to new issues. Nobody is re-writing<\/strong> anything.<\/p>\n

WILSON<\/em><\/p>\n

Then\u00a0amend<\/strong> the language so it\u00a0does<\/strong> apply! If our ideas would break society, then\u00a0fix<\/strong> them with an amendment!<\/p>\n

But!<\/em> It must be the\u00a0people<\/strong> who fix it, not a handful of well-meaning know-it-alls in government.<\/p>\n

Sis with an “aw, do we have to” posture<\/em><\/p>\n

SIS<\/em><\/p>\n

But amending it is so\u00a0hard!<\/strong><\/p>\n

James Wilson shrugging, Joe holding Sis back<\/em><\/p>\n

WILSON<\/em><\/p>\n

Yes… on purpose… for good reason…<\/p>\n

And that’s\u00a0no<\/strong> reason to use judicial power to get\u00a0around<\/strong> the people.<\/p>\n

SIS (furious)<\/em><\/p>\n

How can you\u00a0say<\/strong> that?<\/p>\n

If\u00a0judges<\/strong> hadn’t created constitutional rules… if we’d had to wait<\/strong> for amendments…<\/p>\n

We’d still have\u00a0segregation!<\/strong> Discrimination might still be\u00a0legal!<\/strong> Abortion-<\/p>\n

JOE<\/em><\/p>\n

Whoa — we’re getting\u00a0way<\/strong> ahead of ourselves! Save it for when we\u00a0get<\/strong> there!<\/p>\n

But you\u00a0do<\/strong> have a point…<\/p>\n

Joe watching a pendulum swing and BONK pawn-shaped markers off the ground.<\/em><\/p>\n

JOE<\/em><\/p>\n

Yes, societal attitudes\u00a0do<\/strong> change. And yes, the law should adapt. But those were courts making decisions you\u00a0like.<\/strong><\/p>\n

History makes it clear that the pendulum can easily swing the\u00a0other<\/strong> way.<\/p>\n

When the\u00a0other<\/strong> side comes to power, do you want their judges to have the\u00a0same<\/strong> power to reinvent the Constitution?<\/p>\n

The power to\u00a0protect<\/strong> rights & freedoms\u00a0we<\/strong> like is the power to\u00a0undermine<\/strong> the ones that\u00a0they<\/strong> don’t like!<\/p>\n

Sis & Joe looking surprised and abashed<\/em><\/p>\n

NARRATOR<\/em><\/p>\n

Stop it, both of you.<\/p>\n

The courts have\u00a0always<\/strong> played a role in making sure the law — even the Constitution — changes to fit a changing society.<\/p>\n

Different colored drops gradually changing the color of a glass of water.<\/em><\/p>\n

NARRATOR<\/em><\/p>\n

It’s called\u00a0“precedent.”<\/strong><\/p>\n

In case after case, decision after decision, traditions of what the Constitution means\u00a0build up<\/strong> over time…\u00a0evolving<\/strong> with each nuance, each new circumstance.<\/p>\n

Rainbow flow changing water white, Sis looking into a glass of silvery liquid, Joe clutching his head.<\/em><\/p>\n

NARRATOR<\/em><\/p>\n

Constitutional Law is a kind of\u00a0common law,<\/strong> slowly catching up to society and\u00a0describing\u00a0<\/strong>our values, not\u00a0pre<\/em>scribing them.<\/p>\n

SIS<\/em><\/p>\n

Is that supposed to be a mirror?<\/p>\n

Awful mirror.<\/p>\n

JOE<\/em><\/p>\n

For crying out loud…<\/p>\n

Joe throwing arms in frustration, Gouverneur Morris and James Madison looking on<\/em><\/p>\n

JOE<\/em><\/p>\n

All I wanted was to take a moment to finish this chapter, and explain\u00a0what! THEY! WERE! THINKING!<\/strong><\/p>\n

GOUVERNEUR MORRIS<\/em><\/p>\n

And I say who\u00a0cares<\/strong> what we were thinking? Just use the ordinary meaning of the plain text at the time it was written.<\/p>\n

JAMES MADISON<\/em><\/p>\n

And I say who\u00a0cares<\/strong> what\u00a0we<\/strong> were thinking! Just rely on what the\u00a0people<\/strong> thought it meant at the time\u00a0they<\/em> adopted it.<\/p>\n

Sis, a judge, and a random person<\/em><\/p>\n

SIS<\/em><\/p>\n

And I say who\u00a0cares<\/strong> what they were thinking! Just apply what it means to us\u00a0here<\/strong> and\u00a0now.<\/strong><\/p>\n

JUDGE<\/em><\/p>\n

And I say who\u00a0cares<\/strong> what they were thinking! Just apply its essential\u00a0principles<\/strong> to modern situations.<\/p>\n

PERSON<\/em><\/p>\n

And I say who\u00a0cares<\/strong> what they were thinking! Just apply the principles it\u00a0ought<\/strong> to have.<\/p>\n

NARRATOR<\/em><\/p>\n

Yeah, who\u00a0cares…<\/strong><\/p>\n

Faceless voices<\/em><\/p>\n

NARRATOR<\/em><\/p>\n

…just apply the\u00a0precedents<\/strong> as they keep evolving.<\/p>\n

VARIOUS VOICES<\/em><\/p>\n

Who\u00a0cares?<\/strong> The Constitution is an illegitimate system that only preserves and promotes\u00a0injustice.<\/strong><\/p>\n

Who\u00a0cares?<\/strong> Just ask what\u00a0scholars<\/strong> say it means.<\/p>\n

Who cares?<\/strong><\/p>\n

Who\u00a0cares?<\/strong> All meaning is a human invention.\u00a0Nothing<\/strong> is really foundational.<\/p>\n

Who\u00a0cares?<\/strong> “What they thought” and “what it means” are the\u00a0wrong<\/strong> questions.<\/p>\n

Who\u00a0cares?<\/strong><\/p>\n

Who\u00a0cares?<\/strong> Assigning meaning\u00a0perpetuates<\/strong> the oppression of the non-privileged!<\/p>\n

Who\u00a0cares?<\/strong> Who\u00a0cares?<\/strong> Who\u00a0cares?<\/strong> Who\u00a0cares?<\/strong><\/p>\n

Gouverneur Morris and James Madison explaining to Average Joe.<\/em><\/p>\n

MORRIS<\/em><\/p>\n

Anyway, little fella, you already admitted that you\u00a0can’t<\/strong> really know what we were really thinking.<\/p>\n

MADISON<\/em><\/p>\n

There’s no transcript of the convention… Our notes are contradictory… We had contradictory ideas… We changed our minds… More than one altered bits later to look better to posterity…<\/p>\n

Various Framers of the Constitution<\/em><\/p>\n

VARIOUS<\/em><\/p>\n

As you said: We were all\u00a0brainstorming!<\/strong><\/p>\n

Tossing around all\u00a0kinds<\/strong> of ideas.<\/p>\n

Even what we\u00a0said<\/strong> isn’t necessarily what we\u00a0believed.<\/strong><\/p>\n

And as you said:\u00a0Why<\/strong> any given delegate voted for any given resolution is anybody’s\u00a0guess.<\/strong><\/p>\n

Joe, stomping in frustration<\/em><\/p>\n

JOE<\/em><\/p>\n

By thunder, this chapter is called “What Were They Thinking” and by thunder we’re going to tell the nice readers what they were thinking!<\/strong><\/p>\n

Ben Franklin<\/em><\/p>\n

BEN FRANKLIN<\/em><\/p>\n

Might I suggest…<\/p>\n

a\u00a0compromise?<\/strong><\/p>\n

<\/div><\/div>Transcript<\/a>","protected":false},"excerpt":{"rendered":"

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