Here is a response I made off-list on this thread, to the participants in it: ______
There are many kinds of meanings that words (or signs in the language of semiotics) can have. Semantics is mainly concerned with the meanings assigned by the recipients or readers, because those are the meanings on on the basis of which they will act, if action is to be guided by the words. But the wise reader, if he is not just reading poetry, or one who is sincerely devoted to complying with the understanding or intent of the writers, will make an effort to discern the meanings the words had for the emitters or writers, and if the writers are not available for questioning, as the Founders (both Framers and Ratifiers) are not, then it can be a matter for forensic detection and historic linguistic analysis, which is not, in general, completely susceptible to a few simple rules or maxims. Lawyers and courts have attempted to develop such rules, for statutory, contractual, or probate interpretation, but it is often a mistake to rely on such rules too heavily if investigation offers an opportunity to discern the writers' meanings better. But first a word about the rational ignorance of voters, including perhaps, ratifiers, if ratification is by referendum and not by deliberative convention. This is indeed a problem, but if we define rationality of voting as based on the economic payoffs to the voter of casting his vote, then it would not be rational for a voter to vote at all unless they can expect only a few others will vote (and indeed it appears many do arrive at that conclusion). What is missing is the reasoning from the premise one has a duty to vote to having a duty to invest in acquiring sufficient information and deliberating seriously on how to cast one's vote. The success of republican government rests on a deontological (or perhaps aretaic) premise. With a merely short-term consequentialist premises, it won't work. (One can argue that the deontological is consequentialist long-term, but that means not discounting the future at a rate of more than 21% per generation -- do the math.) As Calvin Johnson points out, the decisions of voters, ratifiers, or consumers are what count for outcomes, but we don't look to them for meaning unless they engage in sincere and competent deliberation. That is why we respect the decisions of juries, and don't decide judicial cases by referendum. It makes a difference to the quality of decisions if people are compelled to focus on the evidence and argument and to reach a definite conclusion. We question their decisions if they are incompetent, negligent, or ill-informed, but also recognize that the critical decisions of a republic can't depend on competence beyond what most people have, on the average, and that the remedy for most decisions is to get them to deliberate and to make sure they have all the information they need. That is why I emphasize the importance of arguing law in the presence of the jury, because to reach just decisions jurors must review the arguments and decisions of the lawyers and the bench. Law is too important to be left entirely to the professionals. So the thinking of the ratifiers is important. Unfortunately, we do not have "thousands" of pages of evidence on what that was. We have enough, when combined with the public debates on ratification, to discern that during the ratification process the words of the proposed Constitution underwent some clarification, not only for the ratifiers or the people, but also for the Framers, and that the clarifications emerging from that debate may be more important than what the Framers meant during the Philadelphia Convention. In that sense, the "anti-federalists" did not "lose" the debates, because ratification, when it occurred, was done with assurances that the words would not be construed in a way that would arouse their objections. That is why I argue that the Jeffersonian "Revolution of 1800" must be treated as authoritative on constitutional construction, even though it happened after ratification, because it was the result of sorting out the competing interpretations after a trial of some attempts to interpret the Constitution in practice. Sometimes even the engineer doesn't know what he meant until the vehicle undergoes some testing on the racetrack. So to the several meanings we have to add "meaning after testing". I have been asked by some people, including some on this Cc: list, to define "originalist interpretation", and I replied that it is "my interpretation". Originalism is a commitment to discern original understanding as well as one can, given the evidence and analytic tools available to us. It is not an exact process that can be reduced to a few rules. It is detective work, and can be quite complex. I try to do it well, and since I do other things well, like mathematics and computer programming, people can have some assurance that I am doing that well, since the skills are similar. But there is no substitute for developing those skills oneself, and making the often time-consuming and difficult effort that serious investigation requires. That having been said, one can rely on a few rules: the /presumption of nonauthority/, and the corollaries that when in doubt, construe delegations of powers as narrowly, and immunities from official coercion as broadly, as the words of constitutions or statutes permit. That is also why I argue that a multi-member bench should be required to be unanimous to sustain a claimed power of government against a claimed right of an individual against the exercise of that power, just as we require juries to be unanimous to bring a guilty verdict. If there is any doubt, the benefit of the doubt should go to the individual. -- Jon ---------------------------------------------------------------- Constitution Society 7793 Burnet Road #37, Austin, TX 78757 512/374-9585 www.constitution.org [EMAIL PROTECTED] ---------------------------------------------------------------- [Non-text portions of this message have been removed] ForumWebSiteAt http://groups.yahoo.com/group/Libertarian Yahoo! 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