kcbrown
Super Genius
- Jun 16, 2012
- 1,393
I said originally understood plain meaning, not "plain meaning" without that additional context.
That doesn't matter. The Constitution was written in the only language the founders knew and understood: theirs. Its authors used meanings they understood, and wrote the Constitution with the intention that their contemporaries and everyone who followed would arrive at the same understanding as theirs. This is no different from any other communication. We communicate for the purpose of conveying information and ideas as per our understanding. An honest recipient will do his best to reach that same understanding. Only a dishonest recipient will insist upon his own meaning over and above that of the originator.
To insist that it means anything else is to insist that "well, times are different now, so what you said before must mean something else now" is somehow valid. No, we simply don't do things that way, and for good reason: because to do so ultimately renders everything that is ever said bereft of meaning. If meaning can be arbitrarily assigned, then nothing has any real meaning in the first place, and the ultimate purpose of communication, which is the conveyance of ideas, will be torn asunder.
That does not relieve us of the obligation to determine, to the best of our abilities, what the original intended meaning was. The original intended meaning is the only valid meaning. You don’t just throw up your hands and say “well, I guess what you meant is whatever I think it should mean” just because you can’t ask the source. Instead, you’re obligated to do the appropriate research in order to get as close as possible to the originally intended meaning. The process of doing this properly is now a field of study unto itself. That is how seriously we take this. It clearly won’t do at all for the courts to take such a thing any less seriously.
I am not claiming that we must be perfect in this. There are obvious limitations to what we can determine. But we are remiss in our duty if we do not reach those limits in our attempt to understand what was originally meant.
That is true, but also irrelevant. The Constitution does not grant the courts the power to decide cases in whatever way they wish, precisely because the Constitution is the supreme law of the land, which means the Courts are tasked with deciding cases in such a way that they do not conflict with the originally intended meaning of the Constitution. To insist otherwise is to insist that the judiciary can legitimately "decide" that the judiciary actually holds all government power, that all other branches answer to it, and henceforth the judiciary will not only decide cases, but will actively engage in creation of new law, thus setting up the judiciary as the sole ”legitimate” rulers of the country. To insist that the courts are not constrained in their decisions by the original intended meaning of the Constitution is to insist that the judiciary legitimately has unlimited power to do anything it pleases merely by proclaiming it in a decision.
Is that really what you're arguing for? Because it's a natural consequence of insisting that the courts can decide cases however they wish without constraint.
You can't even properly determine whether or not the original intended meaning is applicable without understanding what that original intended meaning was in the first place.
Sorry, I don't buy it. Scrutiny always places "government interest" over and above the Constitutionally-protected right being considered, and only provides specific exceptions for when the right will manage to prevail. That turns the very notion of rights on its head, because the entire point of a right is that it is something that you can exercise despite any "interest" the government might have, so long as that exercise does not conflict with some other right. To insist otherwise is to insist that rights are actually privileges to be metered out by the government as it sees fit, so long as the government does so the “right way”.
Constitutional rights don't mean a thing if the government can infringe them simply by doing so in "the right way", but that's exactly what "scrutiny" insists is the case.
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