On Fri, Mar 30, 2012 at 1:21 PM, Carrol Cox <[email protected]> wrote:
> Gar, there is no such thing as "simple extraction of meaning"; meaning is
> not an ore that one can dig out of the text.

Yup. But I was replying to an argument that a text could. Rather than
starting out by assuming what I wanted to prove, I drew a line from
the assumptions of the person I was talking to that led to that very
point.  Don't know if I succeeded in making my point, but at least I
assumed David was making his point in good faith, and tried to reply
to him similarly in good faith. I used his own text as an example.

>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.

Well, how the Supreme Court interprets the Constitution affects us in
a very really way. In terms of your other points, I was making the
very points you are making, but again rather than focusing on
generalities, I focused on the subject at hand and even on a paragraph
in David's own email.   I'm not going to say that this is a better or
worse means of discourse than yours, but it is one I am more
comfortable with. I often start with generalities when I'm the one
starting the conversation, but in disputing claims by others am mostly
(not always but  mostly) more comfortable focusing on specifics. A
matter of style, neither better nor worse than your own, but probably
with a set of pluses and minuses that differs from your own.

If you look at the full text of what I said below, to which you
top-replied, I think you will find I was pointing at the same argument
you are making, but rather than explicitly stating it, providing
evidence and leaving the conclusion as an exercise for the reader.
>
> 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.
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