Gar, there is no such thing as "simple extraction of meaning"; meaning is not an ore that one can dig out of the text. And texts, moreover, are dumb: they cannot speak for themselves. Look up a fascinating article in Critical Inquiry by James Kinkaid entitled "Coherent Readers, Incoherent Texts." When there are enough organized riots, militant marches, endless demonstrations demanding health care for all, Congress will pass the needed legislation and the Supreme Court will laugh at any challenges to it. In the meantime I suppose endless quibbles about how to interpret the Constitution provide entertainment for those who enjoy such exercises.
Carrol -----Original Message----- From: [email protected] [mailto:[email protected]] On Behalf Of Gar Lipow Sent: Friday, March 30, 2012 1:45 PM To: Progressive Economics Subject: Re: [Pen-l] the SCOTUS health care decision David Shemano wrote: > > This reflects the Constitutional structure, which implicitly, if not explicitly, reflects a view of politics and public choice. The tax and spend power of the Congress is more broad and powerful than the power to regulate commerce precisely because legislators always have an incentive to highlight the benefits and hide the cost of legislation.< > I'm extracting this from the larger discussion because it highlights how political constitutional interpretation is. Trivial point first: when you refer to constitutional structure implicitly reflecting a view, you are admitting there is more than one reasonable interpretation, because there is no reason to assume your view as to the implicit meaning of the constitution is the correct one. Any time you attribute an implicit rather than explicit meaning, the burden of proof is on you to demonstrate that. The preceding point is trivial, because I may be putting more weight on your use of the word. And yet in a way it is not trivial, because it is an example in miniature which this kind of constitutional claim does on a larger scale - weighting one term against another, reading as an act of construction and decision making rather than simple extraction of meaning. A second point. If we turn from this substance, if you are going to interpret something like the commerce clause it is worth considering historical context. First, the constitution itself was not primarily a "states rights" document, superseding a confederation document that was seen as leaving the central government as too weak a world that was too large, and too quick moving for states to be the primary decision making body. So if you look at "intent" there is good reason for interpreting the commerce clause as broadly as possible. Especially if you look at past precedent in interpretation where a Federal rule prohibiting a farmer from growing wheat for his own consumption was held constitutional under the commerce clause. A strong argument can be made that, in practice, constitutional interpretation by courts starts out with a desired outcome and works backwards to the the "legal argument" or excuse. Only one legal theory, but I would say one supported by the evidence. Specifically when it comes to constitutional law, if one looks the documented beliefs of judges about desirable outcomes and actual constitutional rulings by those with authority to make such rulings, one will find these beliefs predict judicial outcomes better than any other single factor. _______________________________________________ pen-l mailing list [email protected] https://lists.csuchico.edu/mailman/listinfo/pen-l _______________________________________________ pen-l mailing list [email protected] https://lists.csuchico.edu/mailman/listinfo/pen-l
