[Wittrs] Re: New Paper -- What is Originalism?
- From: Jon Roland <jon.roland@xxxxxxxxxxxxxxxx>
- To: Sean Wilson <whoooo26505@xxxxxxxxx>
- Date: Sun, 22 May 2011 15:06:57 -0500
Third, it is problematic to try to divide the original meaning into that
supported by evidence of what the founders or lawgivers meant and evidence
ofwhat was meant in the "times". That is overlapping evidence that is often
not very orderly. Much of what the lawgivers meant was uncontroversial and
therefore not in evidence, and can only be inferred from evidence of what
they studied or what those wrote who we have reason to think were an
influence on them.
However, in the "times" we get clear evidence that people in America were
extremely strict and literal about delegations of authority, which led to my
formulation of a right to a presumption of nonauthority[1], and regarded
themselves as having a legal, if not a moral, right to do anything for which
there was not a narrow governmental power to restrict, subject only to
private civil claims. A "presumption of constitutionality" for official
actions would have been anathema for lawyers and laypersons alike. If they
had anticipated the opinion of Justice Marshall in McCulloch v. Maryland[2],
they would not have written the Necessary and Proper Clause in the words
theychose, or perhaps not included it at all. The "times" were intensely
libertarian.
However, it also does not work to look to legal practices of the time[3] as
dispositive of meaning. The Constitution is a recitation of legal ideals,
notnecessarily of contemporary legal practices, many of which the Founders
knew very well were inconsistent with the Constitution. At best we can look
to a few exemplary cases of practice they might admire.
-- Jon ----------------------------------------------------------
Constitution Society http://constitution.org[4] 2900 W Anderson Ln C-200-322
twitter.com/lex_rex Austin, TX 78757 512/299-5001
jon.roland@xxxxxxxxxxxxxxxx[5]----------------------------------------------
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--- Links ---
1 http://constitution.org/9ll/schol/pnur.htm
2 http://constitutionalism.blogspot.com/2010/12/unnecessary-and-improper.html
3
http://constitutionalism.blogspot.com/2011/02/original-meaning-not-in-much-original.html
4 http://constitution.org
5 mailto:jon.roland@xxxxxxxxxxxxxxxx
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