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- Path: sparky!uunet!zaphod.mps.ohio-state.edu!howland.reston.ans.net!paladin.american.edu!auvm!SAIL.STANFORD.EDU!ANDY
- Organization: Computer Science Department, Stanford University.
- Message-ID: <9212302358.AA16872@SAIL.Stanford.EDU>
- Newsgroups: bit.listserv.politics
- Date: Wed, 30 Dec 1992 15:58:52 -0800
- Sender: Forum for the Discussion of Politics <POLITICS@UCF1VM.BITNET>
- From: Andy Freeman <andy@SAIL.STANFORD.EDU>
- Subject: Re: Original Intent
- In-Reply-To: <POLITICS%92123015160316@OHSTVMA.ACS.OHIO-STATE.EDU>
- Lines: 57
-
- >>Jamie is taking an "originalist" position here. The court moved
- >>beyond that limited role a while ago.
- >
- >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.)
-
- Back when I was looking for good constitutional law readings, I came
- across (one of) John Ely's discussion of the role of the Supremes.
- (Ely is/was Dean of Stanford Law and supposedly a heavyweight in
- Constitutional Law.) His description of the mainstream thought on the
- subject was that the Surpremes were supposed to throw out bogus laws
- even if there wasn't obviously a constitutional issue. (I note that
- "constitutional issue" isn't all that fixed either. I don't see a
- "right to contract" in it, but the surpremes protected it for some
- time.)
-
- >Originalists think that the Constitution should be interpreted
- >according to its Original Intent.
-
- Since that was the intent that was passed, it does have one
- interesting distinguishing characteristic. If we're not going to pay
- attention to what was passed fine, but ....
-
- >I have not in any way endorsed Original Intent as a unique
- >strategy for interpreting the Constitution.
-
- I know that Jamie isn't an originalist on all issues, however the
- "Supremes should only decide constitutional questions, and not every
- question has a constitutional answer" is an Originalist position.
-
- >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.
-
- So where should we get word meaning? Note that we can change the
- constitution's text any time we want, so it isn't like we have to play
- word games to change it.
-
- Suppose Congress passes a law defining "press" as "govt office that
- distibutes official news bulletins". They manage to get it put into
- common usage and dictionaries. Does this also change the protections
- afforded by the 1st amendment? What if Congress didn't pass such a
- law; does that change things?
-
- >If you want to know why *I* personally agree with this
- >conception of the role of the Court, I will explain why.
-
- I agree with it, but it isn't all that mainstream.
-
- -andy
- --
-