a post in which I answer a purported constitutional expert with what I imagine to be a better constitutional expert, making short work of an argument I’ve in other circumstances critiqued with far more immediacy and rigor: proteinwisdom.com

 

Dr Leon Friedman, professor of law, Hofstra, writing at the Huffington Post:

Of course, Congress must rely on the specific words of the Constitution as a basis for any legislation, as the Republicans and the Tea Party insists. But those broad words — “general welfare” “regulate commerce” — must be read in accordance with the economic reality of our time, not the time in which the Constitution was ratified. The Supreme Court correctly expanded the reach of the Commerce Clause in the late 1930′s in order to uphold many provisions of the New Deal in the 1930s to meet the problems of the great depression. The Court followed the words of Chief Justice John Marshall in McCullogh v. Maryland: “[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.”

Today’s federal courts should follow the same path and uphold legislation like the Obama health care law that correct problems having a serious impact on our nation’s economy and do effect “Commerce… among the several states”.

The ideologically-driven notion that we cannot let Congress pass laws unless we can link them to specific language in the Constitution that must be as narrowly defined as possible must be rejected.

protein wisdom, intentionalist, borrowing from James Madison, Constitutional author:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

[my emphases]

Insofar as it purports to reject legislative intent and concentrate its efforts instead on what it then claims is the “plain meaning” of the signifiers it will, in every new context, try to signify afresh, textualism provides the backdoor entry into legitimating the idea of a Living Constitution Friedman herein advocates. Naturally, sometimes this signification will appeal to originary intent, particularly in those instances wherein that intent matches up to desires of the interpreter for that interpretation to obtain (thus granting it a kind of extra authority); but the catch is, such an appeal is not mandatory, based on the linguistic premises that underlie textualism: once we allow that original intent is not as a rule binding, we tacitly proclaim that the intent of the receiver is ascendant (though we use precedent to try to rein in the more aggressive re-imaginings in the short term while creating ever new texts to manipulate in the longer term to justify oftentimes complete inversions of original meaning).

Intentionalism — which observes that for language to be language it must do more than merely look like language; and notes as a consequence that where we establish the locus of signification as a rule will determine who we allow to control the text’s meaning — is the linguistic truism that guards against the theft of meaning by the will to power of dedicated interpretive communities. If we let it.

By “democratizing” meaning — as the left has sought to do — has perforce robbed the utterer of his ability to mean what he meant as a rule over time; and so allow sophists like Dr Friedman to pretend that what that utterer meant in the past need not constrain what the new situatedness of the Constitution allows that meaning to be today.

Which way of usurping the hermeneutic latitude to do what you wish does away with the messy and difficult problem of changing the Constitution through Constitutional amendments and the like, you have to admit.

But of course, these kinds of observations are “fundamentally unserious,” as some on the right have noted (how does any of this stuff help get Mitch Daniels elected?, eg.) so I offer them only in case someday someone can find a use for them.

a post in which I answer a purported constitutional expert with what I imagine to be a better constitutional expert, making short work of an argument I’ve in other circumstances critiqued with far more immediacy and rigor

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