From: thornley@mega.cs.umn.edu (David H. Thornley)
Subject: Re: Banned Computer Material 1992
Organization: University of Minnesota, Minneapolis, CSci dept.
Date: Tue, 13 Oct 1992 21:44:22 GMT

In article <1992Oct13.160500.8637@eff.org> mnemonic@eff.org (Mike Godwin) writes:
>In article <1992Oct13.144935.14519@news2.cis.umn.edu> thornley@milli.cs.umn.edu (David H. Thornley) writes:
>
>>Look, guys, *words* *have* *meaning*, and the Constitution is made of
>>words.  Some of this stuff has clear meanings.  I think there is a useful
>>distinction between what the Constitution plainly says and what the Supreme
>>Court claims it says.
>
>Really? What's the distinction between what the Fourth Amendment says is
>a "reasonable search" and what the Supreme Court says it is? What's the
>difference between what the Eighth Amendment says about "cruel and unusual
>punishment" and what the Supreme Court says about it?
>
In this case, there is no difference.  Perhaps I should have emphasized
the word "plainly" above.  The Constitution is not clear in all areas, but
there are topics it is wonderfully clear on.  Some of these areas have
been effectively rewritten by the courts.  For example, the Constitution
says that Congress shall pass no law abridging the freedom of speech,
but in fact the Supreme Court has decided that the Constitution really
can't mean that, and that Congress can pass such laws (and indeed has).
Obviously, "reasonable" and "cruel and unusual" need interpretation.

>Indeed, since the First Amendment, written in the 18th century, refers to
>"press" and "speech," don't the "clear meanings" of those words, as used
>in an 18th-century document, mean that this very discussion we are having
>is *not* protected by the First Amendment?
>
It is not protected by the words of the first amendment, but can be
declared to be freedom of press by the Supreme Court.

Look, I'm not saying that there is no such thing as constitutional law
as declared by the Supreme Court.  I'm saying that it is just as
reasonable (if not more so) to refer to the meaning of the Constitution
as the meaning derived from the words on the legal document as opposed to
the Supreme Court decisions which are more or less strictly based on`
this document.

>I ask these questions in order to challenge your assumption that laws and
>Constitutions can function independently of interpretation. They cannot.
>
Can the Constitution function as the basis of a government without some
interpretation?  Clearly not; as pointed out above, somebody has to say
which is a reasonable search and seizure and what is cruel and unusual
punishment, and somebody has to rein in the government when it tries to
twist the Constitution to mean something it doesn't.

However, it is true that the Constitution is composed of English words
assembled into grammatical sentences, and that these sentences have
meaning to any English speaker.  Some of this stuff is ambiguous; some,
like the Fourteenth Amendment, is downright obfuscutory, for historical
and political reasons.  But some of it does have meaning according to
the English language without somebody else's interpretation.

Further, as I pointed out earlier, an English speaker who is not a U.S.
citizen or resident is likely to be concerned with the Constitution as
a legal and historical document, and is not likely to be familiar with
Supreme Court interpretation and is not likely to care.

DHT


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