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Mick Jagger
The Constitution wasn't ratified by the people, dude. It was ratified in the name of the people, by their elected representatives.
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The Constitution derives its legal validity from THE PEOPLE. The elected representatives (and not the drafters by the way) were representing THE PEOPLE, and not exercising independent power or authority.
"WE THE PEOPLE of the United States...."
Quote:
Mick Jagger
What was the well established law of legal instrument interpretation when the Constitution was made?
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The Canons of Construction, which is what I have told you over, and over, and over again.
The GOAL of interpretation of a legal text should be to ascertain what it was generally understood to mean at the time it was given effect. The Canons of Construction are a series of long-established (well before the drafting of the constitution) guidelines, rules, and principles developed to aid judges in that pursuit.
Blackstone was not a treatise on how to interpret legal texts, it was a collection of commentaries on what constituted English Common Law (laregly viewed as the most comprehensive written collection of English Common Law at the time). It is a very useful tool for someone trying to ascertain what those phrases and concepts incorporated into the Constitution FROM English Common Law were generally understood to mean at the time. For example, "Cruel and Unusual Punishment" was not a concept invented for the Constitution, it was something drawn from English Common Law. Ergo, if a judge is trying to ascertain what that phrase was generally understood to mean at the time it was put into the Constitution and ratified, Blackstone is an excellent resource for that.
If however, a Judge is trying to ascertain what 16th Amendment's "incomes" was generally understood to mean, Blackstone would be far less useful as it is not neccesarily the English Common law meaning that was generally held to be the meaning of the term when it was ratified in the 16th Amendment.
The reason "intent of the lawmaker" is a bad standard is that it is the text, not the "intent" of the lawmaker that has force of law, it is the actual text they use, which governs the people. Originalism as Textualism is subtly, yet significantly different. It has been described as:
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"The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justices Scalia and Thomas, are associated."
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This is derivative of the most basic of the Canons of Construction, with much of the rest of the canons being rules which have been honed to achieve this purpose.
A great example of this was a case I have previously mentioned in which a statute provided for stiffer sentencing for any crime where a gun was used. The case before the court featured a defendant who had been convicted of a drug offense, and had additional time added to his sentence under the statute because he had traded an unloaded gun for the drugs. The majority upheld the additional sentence. Scalia, on the other hand, in his dissent, that the reasonable understanding of "use a gun" was in using it for its designed purpose, as a weapon; and not, as was the fact in this case, as a medium of exchange. Scalia pointed out that when the average person asks if you "use a cane", they are not inquiring whether or not you happen to "use" your grandfather's antique cane as a decorative piece in your hallway.
As Scalia himself says, a legal text should neither as a rule be construed "strictly" or "broadly", it should be interpreted "reasonably" (meaning as the reasonable person being governed by it would understand it to mean).
Another practical problem with "original
intent", is that it more often than not manifests itself in a jurist selecting ONE of the intents and elevating it above all others in a way which obliterates what more often than not is a carefully crafted BALANCE of objectives. For example, a relatively recent worker's discrimination suit where the statute provided a statute of limitations from the original act of discrimination were the dissenters interpreted in such a manner as to eliminate the limitations explicitly provided for in the statute in practically any forseable situation. Their reasoning was that the "intent" of the statute was to permit people who had been discriminated against to sue, and that in the case before them any interpretation other than the one they were applying would have meant the party could not, ergo the original "intent" meant that the limitation did not apply, even though it was clearly and deliberately INCLUDED in the text of the statute.