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Gerald J. Russello
Debating the Constitution « Back to Story

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Amend to read 'The United Kingdom does not have a constitution written in a single document. Its constitution is partly written in a number of different documents each serving a different purpose and partly traditions which are handed down. The difficulty of amendment of its principles is roughly proportional to the importance of the subject. Tradition is readily modified by the 'zeitgeist': written statutes are amended by Parliament.'
Thank you for this clarifying piece. But I have questions on two points.

As to the 14th Amendment citation in the debt context-

Section 4 seems plainly to refer to debts incurred related to the waging and ending of the civil war, and to ensuring that the US Government will honour all debts incurred to those ends. All of which seems a method of ensuring a return to sound peacetime finances, a sound reputation for the Treasury, and to ensure that any government more sympathetic to the South not renege on bounties and pensions paid to those who served the Union cause. And indeed all of that is structured merely as prelude to the clause describing debts that will not be honoured, particularly property claims for the loss of slaves.

Therefore am I being unspeakably naive in so lately suggesting that the provision ought to be inapplicable in the present debate?

Alternatively, since the first part of Section 4 does open with a general cause and for reasons I will make clear I consider those important, perhaps we do have to consider it in this debate. But that being so, it plainly refers to the validity of the public debt, which I would read to mean by definition public debt that already exists, ie has been issued already. It also refers to debt authorized by law, which debt in excess of the limit would not be, and presumably not therefore valid debt. And officials issuing it would surely be acting unlawfully. Therefore it need not go unquestioned under this provision, and indeed must be questioned by the provision's plain terms.

None of which requires resort to any sort of originalism other than the still current English meanings of these sentences.

On the 2nd Amendment-

Is it really correct to say that the majority Heller decision relies on the 18th century public meaning? I have not read it. And if it does rely on this approach, why was it necessary? The idea that the structure of that amendment provides a context and a purpose for the right to keep and bear arms but then in the operative clause describes an unlimited and individual right is consistent with established and still-current English grammar. Any interpretation suggesting that the militia provision is dispositive is ungrammatical, whatever the public meaning was or is.

If one were to base one's argument for the unlimited right on the fact that in the 18th century, and for centuries before and some while after, the militia comprised all able-bodied males, then one would be making an argument based on 18th century public meaning. Although personally I would call it the public meaning of the entire period circa 1000-1903 [at the earliest. But an argument based solely on the structure of the sentence is timeless.

I am no constitutional scholar and have read enough to know the debate never really works this way or operates on such simple levels, but sadly I am forced to ask why not. The English language has not changed that much.
The people who wrote the Constitution were doing the "High level design document" for a politico-socio-economic system. They were all members of the Enlightenment, amateur scientists and/or engineers, most were businessmen in some way or other.

200+ years on, we have a much better understanding of complex designs and the processes required to convert engineering/scientific thinking to reality, e.g. building aircraft carriers, moon rockets, computers, computer systems.

We have learned, for example, what documents are required and how very careful a team must be in creating, interpreting, modifying and implementing the documents. Changing the meanings of critical terms in the middle of the project will very likely lead to failure.

The government is largely managed by lawyers and people trained in the literary tradition, not the scientific/engineering tradition. The literary tradition has no understanding of systems.

You can't even conceive of this argument if you have had actual experience implementing complex systems. If you do have such experience, then you consider the Constitution as just another technology, a technology of government.

The US has abandoned its technology of government, the best yet designed. We understand much better how to do this, our next version will remove the many positive feedback loops, e.g. people who benefit from gov spending get to vote for more gov spending.

We are now using the same technology of gov as Europe, and our society and economy is beginning to look very like theirs. Progressives in both parties have a lot to answer for.
It's not "original intent" that confounds the US Constitution, but the intent of those with an agenda that is in direct contradiction to original intent that causes the Constitution problems. Even when we have definitive comment by an amendments author in the Congressional Record to guide interpretation. Such is the controversy regarding the meaning of the word "jurisdiction" in the 14th. Amendment. An interpretation that is now used to create a situation where citizenship is granted by the geographical location of birth where none was intended by the amendments author. He could not have known that later generations of judges would not imagine that a word could have multiple meanings in various contexts. So, "jurisdiction" now means Anchor Babies.

The Constitution is elegant and genius. However, it's interpretations have been crudely obtuse and incredulously moronic.
"Article V of the Constitution is 'both too difficult and insufficiently supple to do the job, with the result that the judiciary has stepped into the breach, making the Constitution a living one in an ongoing process of interpretation in the adjudication of cases over time.'”
Let's not beat around the bush. This is simply leftist cant used to defend the proposition that judges should be empowered to foist on us laws which we don't want, but which liberals know would be good for us. Thanks, I feel much safer-- and much more free-- with a "dead" Constitution.
Geez, how about assessing irrefutable facts?

First, the english language complex sentence structure. A structure that has not changed since english originated.

The second amendment as RATIFIED by the states.

“A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Since the beginning of the written english language, the independent clause (the right of the people to keep and bear Arms shall not be infringed”)has ALWAYS set the meaning of a complex sentence.

Now these people wish to infer that the dependent clause (A well regulated Militia being necessary to the security of a free State,) now sets the meaning of a complex sentence, and all those english professors, lawyers and judges who ruled on EVERY single meaning or ruling throught history were wrong. ROTFLMFAO, GOOD LUCK PROVING THAT!

Lets see, have you removed the 30 plus references to what "well regulated meant" from the Federal Papers, and the 1774-1789 congressional writings in the museums, especially the Karepeles US historical documents Museum, CA? No, you did not remove those references that "well rgulated" means and always has meant "trained in the skills of war".

Guess you did not change all those dictionairies either.

Why is it, that in that same documents depository, that the original draft of what became the second amendment, that the draft was clearly written as a collective right? Why is it that they changed it to what exists today if that is what the founding fathers wanted? Oh thats right, actions DO SPEAK LOUDER THAN WORDS! Karpeles Museum, CA.

Then the last logic arguement that the anti's can't respond to. They fail to prove that the militia existed before the armed individual did. See in order for a person to be armed due only on the existence of a militia, the militia must have had to exist first. Sucks to be the unsubstnatiated believer of a living constitution!
District of Columbia v. Heller was not based on originalism, but based on selected quotations used out of context. In other words, it was activism. Had the court quoted Tenche Coxes remarks completely the individual right it would had been shown he was talking about armed militias as part of the military power of the state as a safe guard against standing armies.