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Stop Me If I’ve Said This Before…

Down in the comments to Supreme Court General Knowledge, loyal reader Shaun P mocks “strict constructionists, who divine intent from the documents that were written 200 years ago, when everyone of importance put into words on paper their final thoughts on everything contained within the Constitution. Of course, its a good thing we have all of those documents too, and no one has any trouble understanding them.”

Shaun is right on here, because the more one reads about the creation and adoption of the Constitution, the more one is forced to admit that the framers didn’t agree about their intent. The document has never been transparent, not for a minute. If it had been, there would have been little need for the Federalist Papers, not to mention THE INTERPRETIVE FUNCTION OF THE SUPREME COURT ITSELF. The very possibility that two parties could have differing readings of original intent means that original intent cannot exist. As Gene Hackman says in “Superman,” “Some people can read War and Peace and come away thinking it’s a simple adventure story. Others can read the ingredients on a chewing gum wrapper and unlock the secrets of the universe.” Both are correct. Both are true of any document. That a Judge can do this and claim to be not doing due to a clear instruction from dead 18th century pols is just fraudulent, a kind of inversion of Descartes: “I think, therefore I don’t exist — and you didn’t see me doing it, either.”

I have a relative who is actually educated in Constitutional law and gets quite angry when I make this argument. “You mean,” he thunders, “it just means whatever you want it to mean?” Nah, that’s not the case, I say. It means whatever I can convince you it plausibly means — just like any other work of literature.

This entry was posted on Tuesday, May 26th, 2009 at 1:30 pm and is filed under The Political Mindscape. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

3 Responses to “Stop Me If I’ve Said This Before…”

Jacob Says:
May 26th, 2009 at 2:17 pm
I think this mischaracterizes the purported strict constructionists just a bit. They do consult texts to help them interpret the Constitution, albeit rarely. One of their favorite texts is the Federalist Papers (the other favorite text being a 1789 dictionary). Oddly enough, they don’t believe in consulting legislative history to interpret statutes, though. To them, what the words meant to the populace that ratified the document was what mattered (the populace that apparently read every Federalist Paper and agreed on the definitions of every word).
Shaun P. Says:
May 26th, 2009 at 2:51 pm
That’s a fair point, Jacob, and admittedly I was being a little hyperbolic in my characterization of the strict constructionist philosophy. In reading about the Constitution and the Justices in law school, I remember, far too often, that the “activist” Warren Court (there’s another gross misnomer) was held to be people who just interpreted the Constitution willy nilly, to get whatever policy result they wanted - but those strict constructionists, well, they relied on what the Constitution actually said. Penumbras - bah!

It was a load of bullshit then, and it remains one now, as Steven rightly points out. Yet, in traditional media discussions of the Court and its Justices, I hear it repeated far too often. People bought it and continue to buy it because it sounds good, but if you think about it for just a moment, its a load of bullshit. When you add in that none of the strict constructionists is, to my knowledge, a trained historian who knows how to correctly interpret the documents of the 1780s/1790s, the house of cards really falls apart. Jack Rakove (IIRC?), among others, made this point very clearly in response to Scalia’s majority opinion in DC v Heller.

Steven, your response to your relative is one of the best arguments I’ve yet heard, err, read, in response to the “it means whatever you want it to” straw man. I’m going to borrow that, if you don’t mind.
Chantelle Sackman Says:
June 14th, 2011 at 4:39 am
Sala de leos…

http://www.mordenprojetosdobanheiro.com O design moderno ao ar livre…

Stop Me If I’ve Said This Before…

3 Responses to “Stop Me If I’ve Said This Before…”

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