From: PA146008@utkvm1.utk.edu (David Veal)
Subject: Re: Necessary and Proper
Organization: University of Tennessee Division of Continuing Education
Date: Thu, 28 Jan 1993 17:51:58 GMT

In article <C1Jt8D.MJA@panix.com> lkk@panix.com (Larry Kolodney) writes:

>In <1993Jan27.220454.3621@noose.ecn.purdue.edu> dev@barley.ecn.purdue.edu (Larry Weeks) writes:
>
>>The U.S. Constitution means what the words say. Nothing more, nothing
>>less. As principal author of the document, I consider Madison a very
>>reputable authority on that meaning. I do not consider subsequent
>>"interpretations" which go against Madison's explanations to be
>>valid. I know you disagree with me, and in fact, most modern legal
>>"experts" do as well. So be it.
>
>Madison is obviously an authority on what *he* meant by the various clauses
>contained in the Constitution.  He may even represent the majority
>view of what the delegates at the constitutional convention believed
>the words meant.
>
>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 without some grounding in what the words mean they essentially
become whatever the people in power want them to be.

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

       Truly they aren't.  But it seem strange when the Supreme Court makes
a decision as to what such-and-such a clause means, then twenty years later
reverses itself.  It produces the question as to whether the Constitution has
any independent meaning, and if not, why bother to actually write it down if
the law we pass today means something totally different tomorrow?  

>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 unless there is *some* independent meaning in the 
Constitution, then you don't have the rule of law, but the rule of judges.

>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.  Kind of like those
>Russians who cried at the news of Stalin's death.

       Oh, I like this.  Because I'm not willing to accept the meaning of 
written words changes based on what somebody in a black robe says I am
backward and childish.

       Is there no method of determining what a law should mean today than
"I think it says this?"

------------------------------------------------------------------------
David Veal Univ. of Tenn. Div. of Cont. Education Info. Services Group
PA146008@utkvm1.utk.edu  (Mail to VEAL@utkvm1.utk.edu will bounce.)
"For every action there is an equal, and opposite, government program"
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