I have not read a lot about constitutional and or legal interpretation, but
what I have read seems to be a very shallow echo of hermeneutics and exegesis
philosophies and methods developed for religions texts, especially the Koran,
Torah, and Bible. Maybe a course or two in literary hermeneutics should be
prerequisite for getting a law degree and or a judgeship?
I was part of a conversation recently with an ultra-liberal and
arch-conservative that focused on 2nd amendment. The Lib stated that the 2nd
applied only to militias and the kind of rifles owned by militia members at
that point in history. A pretty familiar argument. The Con said this was wrong
- that the 2nd is really about the populace having the means to overthrow a
government that has become tyrannical. When written this meant
semi-governmental militias with state of the art weaponry. Translated to today,
that would mean Sheriff sanctioned "posses" / "militias" with RPGs, Stingers,
and suitcase nukes.
The beer was cold, the Valley Tan was smooth and the argument was long and
heated, but friendly.
davew
Valley Tan — whisky brewed by Mormon pioneers from wheat and oats. Brigham
Young had an exclusive license to distill it. Mark Twain and Brigham share a
bottle or two when Twain visited. Sir Richard Burton shared same with Porter
Rockwell when Burton passed through SLC.
davew
On Wed, Sep 23, 2020, at 8:36 AM, uǝlƃ ↙↙↙ wrote:
> Excellent! That helps. It seems reasonable to think one can be a
> "living document textualist". I.e. you first identify the (perhaps
> wide-ranging) set of relevant *enacted text*. Then you have some rules
> by which you apply/infer meaning and implications of that text. An
> originalist would differ from a livingist by grounding the text to the
> historical context in which it was enacted versus the current context,
> respectively. I think the categories aren't disjoint, though. My guess
> is both types would *have* to do some translations like your example of
> "nice". You can't do either context-grounding without some translation.
> So, it's more like a bias than a category.
>
> Re: "the law" -- The entry on constitutionalism in my "American
> Conservatism" encyclopedia claims that the modern conception of a
> constitutional government is to *limit* the power of the government
> w.r.t. the governed individuals, most obviously in the separation of
> powers. And the author of the entry (Whittington) goes on to assert
> that a US addition to the modern conception is "the notion of the
> constitution as a fundamental law." What this might mean for the above
> context grounding would be something like an "upper ontology"
> https://en.wikipedia.org/wiki/Upper_ontology. The core facility of
> ontologies is the ability to (semi-automatically) translate from one
> lexicon to another, identifying the same concepts in spite of variation
> in the words used. If constitutions *are* some type of mechanism for
> objectively distinguishing *scopes* (individual vs. government), then
> what we mean by "law" is only *indicated* by the text, not ensconced
> *inside* the text ... some kind of indirect, Platonic, non-naive
> realist structure we're approaching with our various text documents.
>
> Re-reading that entry resuscitated the question about what freedoms the
> Democrats are trying to take away. Do *laws*, by which I mean that
> objective referent of the texts, primarily expand or limit freedoms?
> Laws like Obamacare seem to expand positive freedom *via* the negative
> freedom from (e.g.) pre-existing conditions. But conservatives hate
> Obamacare for some bizarre reason. And this takes me back around to the
> irritating question about mathematics, is it invented by us? Or
> discovered by us? Are laws something fundamental to the composition of
> collectives from individuals that we're discovering? Or are they
> prescriptive, arrogant attempts to *engineer* the world, imputed by the
> charismatic/influential/facile among us? If we could answer that, we'd
> have some hints to your question about parties vs. orthogonal access to
> the state of society.
>
>
> p.s. I've long been confused by the uptake of Maturana and Varela's
> autopoiesis by legal scholars. Why would they be attracted to what
> seems like theoretical biology to me? But perhaps there's more to the
> relationship between science and law than I've ever thought to be the
> case? Is law a kind of sociology? If so, then "theoretical law" and
> theoretical biology might not be so different.
>
>
>
> On 9/23/20 3:39 AM, David Eric Smith wrote:
> > I don’t know how one defines it as a method, but the approach I usually
> > hear contrasted with Originalism comes associated with “living document”
> > language. The idea being that any legal statement cannot take any meaning
> > but in the context of its time (socially accepted norms, available
> > knowledge of facts, social and material technologies and institutions,
> > demographics and conditions of living, etc.), and that if those conditions
> > have changed, there is no sensible way in which an appropriate meaning of a
> > text can be derived without reference to the current context.
> >
> > This seems to me sort of obvious and inescapable, in the sense that
> > pre-Shakespeare, one would have used “nice” to mean a sharp, burning or
> > cutting pain, but to expect or demand that everyone who heard the word
> > today know that that was its intended meaning would be absurd. Likewise
> > that “people” in “we the people” meant the anglo male landed gentry of the
> > time, as opposed to “people” as the term would be used in non-Republican
> > society today.
> >
> > An interesting problem this poses for me is how correctly to make the
> > argument that a constitution should be a reasonably-stable, but
> > reasonably-adaptable, document to reflect the sense of right in the society
> > of its time, but not be tossed around by the winds of populism or fads or
> > momentary cultural battles like identity contests or post-modern
> > depredations of everything. To assert that the court should be responsive
> > to the norms of the day, but that it should not be politicized (in the
> > sense of, just an effector arm of political parties), when parties are the
> > overwhelmingly dominant organizational structure throughout the modern era
> > in the US, seems to be saying that the SCOTUS should have an independent,
> > parallel, distributed sensor network to the state of the society, somehow
> > protected from this massive gorilla of a power structure that has come to
> > subsume every other institution. I like the idea of autonomous, parallel,
> > distributed channels, but how to design one is not a question on which I
> > think I have insight.
>
> --
> ↙↙↙ uǝlƃ
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