NetNews Usenet Archive 1993 #3/NN_1993_3.iso/spool/talk/politics/misc/70508

Internet Message Format | 1993-01-29 | 4.0 KB

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From: [e-mail] (Frank Crary)
Subject: Re: Necessary and Proper
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Date: Fri, 29 Jan 1993 04:43:22 GMT
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In article <[e-mail]> [e-mail] (Larry Kolodney) writes:
>The question remains: So what?  Why should we, as late 20th century
>Americans, give the slightest weight to the interpretations of the
>constitution by a group of aristocratic men who lived 200 years ago?

Because they wrote it. The entire concept of a written constitution
is to establish the powers and limits of government to which
(essentailly) everyone agrees. The majority can not, then, assume
new powers and repress the minorities, without violating the
fixed, written laws of government.

You seem to think the Constitution should be "interperted" to mean
whatever we, currently, want it to. But who, exactly, are "we"?
In practice, this would mean "the majority of the voters" or
(if you are more cynical about your Congressmen) "the Congress".
In effect, your logic would mean that the government could do
whatwever it wanted, and the Constitution in no way limited the
powers of government.

>James Madison and Alexander Hamilton were not gods.  Neither did they
>go up to Mount Sinai to have the gospel truth about "true" meanings
>revealed to them.  We are all adults here now, and we don't need
>Madison and Hamilton to tell us how to interpret *OUR* constitution.

Are you saying that the authors of a document don't have the
best idea of its meaning?

>The fact that we still debate constitutional meanings surely
>demonstrates that those meanings are *not* self-evident.

However, refering to the writings of the authors may clear up what
they intended it to mean.

>We have plenty of smart, very thoughtful, learned jurists who are
>alive and breathing and (most importantly) live in late 20th century
>America, a country about which the founding fathers could scarcely
>fathom, let alone have very much insight.  So why the appeal of
>original intent jurisprudence?

Because, in keeping with the whole idea of a written constitution,
it is constant and not subject to modern political whims or the
pressures from the majority. If you want the meaning of the
Constitution to constantly change to suit the majority, why have
a written constitution at all?

>IMHO, appeals to purported original intent in constitutional
>interpretation reflect in their authors a deep discomfort with the
>existential choices of modern life.  Such people are unwilling or
>unable to take responsibility for their own political preferences and
>instead have a deep seated psychological need to attribute them to
>mythical all-knowing infallible father-figures.

This is, if I may, the typical psuedo-psychological nonsense typically
used to attack those that disagree without seriously considering
their opinions. My interest in original intent and a written constitution
is exactly as I have stated: It protects minorities by limiting
the powers of a majoritarian government, and places those limits
beyond the power of the majority to alter. I don't know of any other
means of interpertation that is consistant with such a "rule of
law": Other doctorines leave these fundamental limits up to a
simple majority (or worse, a select few) to alter as they wish. For
a government truely by "the consent of the people", the Constitution
should be only what virtually all the peole agree to.

                                          Frank Crary
                                          CU Boulder