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- Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU
- Path: sparky!uunet!gatech!paladin.american.edu!auvm!BROWNVM.BITNET!PL436000
- Message-ID: <POLITICS%92123015160316@OHSTVMA.ACS.OHIO-STATE.EDU>
- Newsgroups: bit.listserv.politics
- Date: Wed, 30 Dec 1992 15:13:36 EST
- Sender: Forum for the Discussion of Politics <POLITICS@UCF1VM.BITNET>
- From: Jamie <PL436000@BROWNVM.BITNET>
- Subject: Original Intent
- Lines: 67
-
- Here is the promised postponed discussion.
-
- Andy:
- >>>And, who decides whether or not said legislators bothered to
- >>>gather said evidence and make such a determination?
-
- Jamie:
- >>(I assume the implied answer is supposed to be, "The Supreme
- >>Court.")
- >>The Court does not have the task of deciding which of the
- >>various state laws passed were poorly thought out, or badly
- >>implemented. It has the task of protecting constitutional
- >>rights.
-
- Andy:
- >Jamie is taking an "originalist" position here. The court moved
- >beyond that limited role a while ago. I think that move was a
- >mistake, but I'm not all that sympathetic when it bites people who
- >like to see the genie get out of that bottle when it suits their
- >purposes.
-
- This is simply an error. (It also includes a not-so-subtle
- ad hominem which I will ignore except for this parenthetical
- reminder. Andy actually set me up for a special kind of
- ad hominem reply, the "tu quoque" reply, but I shall
- resist the temptation.)
-
- All legal theorists, at least all the ones I know about, believe
- that the task of the Supreme Court is to protect constitutional
- rights. (Actually, that's obviously too narrow: there are other
- constitutional issues than rights. Nonetheless, my main point
- is almost universally accepted in legal circles; viz., that
- the Court does not have the authority to strike down any
- legislation it finds bad or poorly implemented.)
-
- What is distinctive about Originalism is the way it suggests
- we (or the Justices) should interpret the Constitution.
- Originalists think that the Constitution should be interpreted
- according to its Original Intent. (But that's a kind of wild
- card, because various self-styled Originalists mean very
- different things by "original intent.)
-
- I have not in any way endorsed Original Intent as a unique
- strategy for interpreting the Constitution. I think sometimes
- we do, clearly, have to do some historical investigation to find
- out what certain words meant around 1800, or whenever. But
- I don't think that's even the main strategy that should be
- used.
-
- About "cruel and unusual," I think, there is an especially
- severe confusion about what its authors had in mind. I would
- have to check this to be sure, but I think that historians
- really don't have much of a clue about what the framers
- (or ratifiers, or general public) believed it to mean.
- If the issue is supposed to be whether the framers intended
- the Court to review laws for general badness or for specific
- kinds of encroachments, that's a different story. It is
- very clear that they intended the latter. But the fact that
- Originalists agree with a certain conclusion obviously
- does not show that an Originalist theory is an implication
- of that conclusion. As I said, pretty much everyone thinks
- that the Court's job is to check legislation for its
- consitutionality, not for general goodness and badness.
- If you want to know why *I* personally agree with this
- conception of the role of the Court, I will explain why.
-
- Jamie
-