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View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

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  •  Intent Be Damned (none)
    Why is it that we focus so much on 'intent' when dealing with the Constitution.  Last night I played a game of poker and there was no discussion at all of the 'intent' of the people who wrote the rules of poker.  Why can't we just read the Constitution as a rule book?

    The Constitution right now is increasingly irrelevant in modern society.  General welfare and "commerce among the states" are thought to mean anything the Congress damn well wants them to mean.

    Socially Just, Fiscally Responsible: FreedomDemocrats

    by LoganFerree on Sat Jul 23, 2005 at 12:52:36 PM PDT

    •  Too vague. (none)
      (speaking as a mathematician and a computer scientist, not a lawyer)

      Say read the VIIth Amendment:


       In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

      Now, first of all, the Constitution doesn't tell what the Common Law is. It doesn't really tell what a trial by jury is. There are all sorts of terms from the British legal traditions floating around there without being given a concrete definition.

      Insofar as I may be heard by anything, which may or may not care what I say... (from "Creatures of Light and Darkness", R. Zelazny)

      by SadEagle on Sat Jul 23, 2005 at 01:02:51 PM PDT

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      •  That's an interesting one (none)
        I've argued elsewhere that the authors used vague wording in the expectation that we would re-interpret as needed over the years. But here, they specify "twenty dollars" with no worry about inflation over the years.

        In the Eighth, they prohibit "excessive" bail and fines.

        Fodder for both sides.

        I've got blisters on my fingers!

        by Elwood Dowd on Sat Jul 23, 2005 at 01:44:52 PM PDT

        [ Parent ]

        •  Not just inflation! (none)
          Where does it say in the Constitution that the currency of The United States must be called "the dollar"? And beyond inflation, it's still rather odd to specify the amount, since the Congress has the right to regulate value of money -- so presumably they could go ahead and make 1 dollar have value of 50 tons of gold, making this amendment useless -- which in my mind clearly requires some level of judicial review to make sense of this provision and prevent abuses

          But, a question for the Lawyers here: has the interpretation of this Amendment been subject to adjustment for inflation in practice?

          Insofar as I may be heard by anything, which may or may not care what I say... (from "Creatures of Light and Darkness", R. Zelazny)

          by SadEagle on Sat Jul 23, 2005 at 02:03:22 PM PDT

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    •  Isn't that the point (none)
      of this discussion? The Constitution can't be allowed to become irrelevant. It's important to abide by its guidelines that have kept our democracy  working for 200+ years.

      We talk about intent, because how else would do we interpret such vague sections as Commerce and the 14th Amendment? What is the ultimate arbiter? Unlike our Constitution, a poker rule book has an explicit instructions for every possible situation. Obviously, running a country is more complicated than playing a game, and it'd be impossible to foresee every situation. So to an extent, it has to be ad hoc. That's the whole puzzle. What intent and whose intent should matter? I don't like intent very much, but until we come up with something better, it beats the hell out of making shit up.

      Yes to Roe, no to Rove

      by cubicalization on Sat Jul 23, 2005 at 01:06:14 PM PDT

      [ Parent ]

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