Randy Barnett on originalism
Prof. Barnett's points, as always, are concise and sharp.
"If it was genuinely not possible to identify the meaning of language at a previous point in time, then old contracts could not be enforced according to their meaning at the time of their formation (which is what the law of contracts requires), old statutes would be a mystery and impossible to follow or enforce, and classic Supreme Court opinions would be impossible to understand."
We can go even farther. There are, in Arizona, the "Baca Float Ranges," large tracts of land given to the Baca family in settlement of a land grant to them from the King of Spain. Court there had to carry out an agreement made prior to the Framing, and in another language.
"The only language that is claimed to be inscrutable mystery to lawyers (but not historians) is the foundational law provided by the U.S. Constitution. How are we lawyers able to follow the 200+ year-old-opinions in Marbury, Gibbons and McCulloch, but not the Constitution itself, written a mere 30-40 years earlier? Has anyone seriously suggested that lawyers need to consult historians to tell them the communicative content of these precedents?"
I come here and over at VC for help understanding the mindset of lawyers all the time. One of my friends is the current prosecuting attorney and one is a retired judge (both Democrats.) In order to have a hope of equality in discussions I need all the help I can get. I don't understand all I read but enough soaks in that I can get a few good jabs in now and again, well enough that both of them think I'm a much deeper thinker than I am. Thanks are due to both sites for spreading information so well.
Posted by: Steve Moyer at August 21, 2013 01:49 PM
I am constantly amazed, no mystified, no baffled at the ignorance of those in the legal profession who claim the language of the Constitution is difficult to discern. Truthfully nothing in the language of the Constitution is different from how it would be said today. The problem lies in the ignorance of those who think they have some idea of the variations in language. What I do see is that most of the claimants have an agenda to push. They need to set up and maintain their authoritarian position on having the sole ability to use their crystal balls (hiding under their black robes) to determine what is hidden between the lines.
All that is really necessary is to read the Constitution as a complete document and to use the other clauses and phrase to determine limits on the words used by the Framers.
Take natural born citizen for a moment. Many claim we don't know what this means. But the term was well recognized at the writing of the Constitution. In England, the father must be a citizen and the child born in country. According to Vattel, the father AND mother had to be citizens and the child born in country. Nothing has changed. Congress cannot define "natural born citizen" because if Congress can define one term or clause, Congress can define ALL terms and clauses and the Constitution becomes meaningless. AND Congress is subordinate, created by the Constitution, and thus cannot decide what anything in the document means. IF Congress as a subordinate can decide meanings, then ANYONE subject to any document, say a court order, has the authority to decide what the document means. No legal authority would ever agree to this.
Posted by: fwb at August 21, 2013 10:59 PM