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. > _______________________________________________ > 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 -- Facebook: Gar Lipow Twitter: GarLipow Solving the Climate Crisis web page: SolvingTheClimateCrisis.com Grist Blog: http://grist.org/author/gar-lipow/ Online technical reference: http://www.nohairshirts.com _______________________________________________ pen-l mailing list [email protected] https://lists.csuchico.edu/mailman/listinfo/pen-l
