tag:blogger.com,1999:blog-8204289.post112205997665766923..comments2024-03-28T12:12:45.202-05:00Comments on Independent Country: What the Framers IntendedAnonymoushttp://www.blogger.com/profile/11620822221586726516noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-8204289.post-1122480469526722762005-07-27T11:07:00.000-05:002005-07-27T11:07:00.000-05:00The precise original understanding of a provision ...The precise original understanding of a provision may be hard to isolate. But I think we can probably set some fairly narrow parameters around the range of uncertainty, and clearly rule out most of the statist "living consititution" BS interpretations, by reference to Blackstone's canons on constructions.<BR/><BR/>To reconstruct the intent of the sovereign lawgiver, among other things, you examine the primary evil the law was intended to remedy; that requires a lot of reading in the history of the Revolution and of previous English history as understood from an Anglo-republican standpoint. For example, any reading of the Fourth Amendment should take into account the Writs of Assistance and the Wilkes affair. <BR/><BR/>You also read ordinary language as it was understood at the time, and terms of art as they were used in the statutes, case law and fundamental laws of the time.<BR/><BR/>And you rely on the promises and reassurances of the law's defenders, not the fears of its enemies, as the basis of contemporary understanding.<BR/><BR/>Legislative reporting was in its infancy when Blackstone wrote his commentaries, so he didn't mention legislative debates. But the Federalist and other pro-Constitution polemics, and federalist speeches in Elliot's Debates, are also an obvious source for establishing original understanding.<BR/><BR/>These things don't eliminate uncertainty--but they reduce the range of it considerably. At least, they make issues of original understanding a matter for reasoned discussion of the evidence, as opposed to something the Nine Demigods pull out of their collective ass.Kevin Carsonhttps://www.blogger.com/profile/07525803609000364993noreply@blogger.com