Letters to the Editor
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Heh...
From:
A Process of Denial: Bork and Post-Modern Conservatism
by James Boyle(1)
[A later version of this essay appeared in
3 Yale Journal of Law and the Humanities 263 (1991)]
[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court. Robert Bork, Fortune December 1968 p.140-1.
[...]
Original Intent:
The better known variant of originalism, and the one that Mr. Bork first adopted and held as recently as 1986, was the philosophy of original intent. The Constitution means what the Framers (or perhaps the Framers and ratifiers) meant it to. This is also the most influential version -- the judicial philosophy championed by recent Attornies General. But if the philosophy of original intent is the most popular version, it is also the easiest to blow out of the water. Listing the arguments against it is the kind of arduous, lengthy and repetitive task which Victorians believed suitable for the rehabilitation of convicts. I undertake it here in the hope of acquiring virtue.
* First, the idea that the intention of the original author must govern the meaning of the text is simply not true as either a practical or a philosophical matter. Actually, in both law and life we use lots of different interpretive criteria to establish what something "means."
* Second, even if original intent was the preferred method, there is strong historical evidence that the intention of the Framers was that their intentions should not bind future generations. Original intent tells us to obey the Framers and the Framers said, "our intention shouldn't govern."
* Third, even if original intent wasn't philosophically and historically bankrupt, the records we do have of the Framer's original intent indicate that it is either contradictory or indeterminate. Sometimes both. Since the proponents of original intent argue that we must embrace their method or else admit that the Constitution could mean anything, it is bizarre to find that his method itself is no more than a judicial Rohrsach blot.
* Fourth, in those few areas where original intent is clear, it is sometimes morally outrageous. Any protagonist of original intent must confront the question of whether or not, as a moral matter, we can responsibly allow the intentions of men, some of whom believed ardently in slavery and almost all of whom believed in the innate inferiority of women, to govern current constitutional interpretation.
* Fifth, to adopt original intent as the supreme method of constitutional interpretation flies in the face of most of the Supreme Court's jurisprudence, the vast majority of scholarly writing, the opinions of most constitutional historians and, probably the majority of the American people. It also raises impossible questions of transition from our current constitutional arrangements. As Mr. Bork once put it, "[t]his Nation has grown up in ways that do not comport with the intentions of the people who wrote the Constitution -- the commerce clause is one example -- and it is simply too late to go back and tear that up. I cite to you the legal tender cases. These are extreme examples admittedly. Scholarship suggests that the Framers intended to prohibit paper money. Any judge who thought today he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench."
To sum up, original intent is a philosophically incoherent method which appears to contradict the Framers own intentions. It is sometimes morally objectionable, sometimes indeterminate, flies in the face of precedent and scholarship and raises insuperable problems of practical implementation.
http://www.law.duke.edu/boylesite/bork.htm
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Check out that fifth point
Here I have one nutbar calling the other nutbar a nutbar. I shoulld get extra credit for this and I didn't even mention any names!
As Mr. Bork once put it, "[t]his Nation has grown up in ways that do not comport with the intentions of the people who wrote the Constitution -- the commerce clause is one example -- and it is simply too late to go back and tear that up. I cite to you the legal tender cases. These are extreme examples admittedly. Scholarship suggests that the Framers intended to prohibit paper money. Any judge who thought today he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench."
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Et Al
Now that you mention it William, I would like to reccomend my method, which seems to have worked now, twice.
Just remind any given troll that there is an archive of their comments, and ask would they like to go over some of those old letters and give a fuller explanation.
I can't be sure that's what did it, but it did seem to chase them away, and might also, if a newcomer took a look say, at a certain macher's letters, prevent them from wasting their time feeding them.
I mean, if they come here wanting to be fed, I've got their favorite food for them- grade A prime bullshit. with a dribbling of mere persiflage around the plate to finish the dish.
All I'm trying to do is clear a little space for the people I can learn from. People who make a practice of abusing their hosts(Greenwald is payed by Iran, is a smear artist, etc.) that usually isn't.
And if I can bring a smile to a care-worn cheek, or cause a guffaw or two, my work is done. It's just my "ideology".
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@LWM
As you know, your posts make me all tingly, like the Wright Bros. (Ask Peggy Noonan about it), but could you be maybe a little more scrupulous, nope, wrong word, say, a little more exacting about distinguishing quoted material from your own comments within a comment. When there are quotes within the quotes you post it gets hard to sort out.
Quotation marks and italics are useful for that, as is block-quoting.
I know it's extra work, but... Hell, do it for buckyl! He'll love you for it!