Why have we stopped using plain English?

Kelly, if you have read these, you will understand what I meant. If not, they are short (12 and 14 pages) as legal writings go....

TRUMPING PRECEDENT WITH ORIGINAL MEANING: NOT AS
RADICAL AS IT SOUNDS
RANDY E. BARNETT

The Social Science Research Network Electronic Paper Collection:
http://www.ssrn.com/abstract=714982​

Originalism was thought to be buried in the 1980s with critiques such as
those by Paul Brest and Jeff Powell. Brest charged that originalism was
unworkable, while Powell maintained that originalism was inconsistent with the
original intentions of the Founders. Others raised the moral challenge of why we
should be ruled by the “dead hand” of the past. Yet an originalist approach to
interpretation has—like a phoenix from the ashes or Dracula from his grave
depending on your point of view—survived into the Twenty First Century as an
intellectual contender. Indeed, it has thrived like no other approach to
interpretation.

This remarkable survival is due, in part, to originalism itself having morphed
in response to these critiques from its previous preoccupation with the original
intentions of the framers to an emphasis on the original public meaning of the
at the time of its enactment. Determining the public meaning of the words of the
Constitution is much more practical than discovering the myriad subjective
intentions of those who wrote or ratified it. That there is a unique original public
meaning is a far more plausible claim than that one can discern a unique original
intention from the potentially conflicting intentions of various framers. And it turns
out that the Founders themselves practiced a form or original meaning originalism.

Finally, an original public meaning approach can be grounded in the need to
impose written constraints on all branches of government. According to this
normative defense, we should adhere to the original meaning of the document, not
because long dead men have any authority over we the living. We should do so
because we, right here and right now, ought to consider a written constitution among
the structural features of our Constitution, and this feature would be undermined if
any of the branches of government, either alone or together, could alter and weaken
the written limitations which have been imposed upon them.
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If that was enough to wet your whistle, then this other paper is also a "must" read:

SCALIA’S INFIDELITY: A CRITIQUE OF “FAINT-HEARTED” ORIGINALISM
RANDY E. BARNETT
http://www.ssrn.com/abstract=880112​
 
And you know, I think it's pretty amazing that the Founding Fathers could do in 4 handwritten pages in about 3 months what the European Union can't do in almost 1,000 pages in 5 years...
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Actually the Founding Fathers worked at it a bit longer than 3 months. Don't forget The Articles of Confederation were in place 11 yrs before the Constitution was written and the Constitution was written when the AofC weren't working well. The Bill of Rights were only added after some states did not agree with everything in the Constitution and without the BofR those states would not vote to ratify the Constitution.
 
"Actually the Founding Fathers worked at it a bit longer than 3 months."

You're right, the Constitutional Convention convened over a period of about 4 months.

The genesis of the convention, and perhaps the Constitution, was the Annapolis Conference in 1786 at which some of the luminaries of the Constitutional Convention were able lay out the sketch of what would become Madison's Virginia Plan.

The Articles of Confederation (which were in effect not for 11 years, but from early 1781 to June 1788 - Congress adopted the articles in 1777, but the required majority of the states didn't act until March 1781) are a complete non-sequitor. Yes, the Articles were in place prior to the Constitution, it was also evident that they were absolutely unable to provide for the kind of governmental structure that was necessary for the new nation.

In many ways the Constitution that emerged can be seen as an Anti-Articles of Confederation document - a side-by-side comparison of the documents is very instructive. There's a good comparison here: http://www.usconstitution.net/constconart.html

The US Constitution was also ratified by the required number of states over a year before the 12 amendments in the draft Bill of Rights were sent to the states for consideration, and nearly 3 years before the 10 amendments comprising the Bill of Rights were finally adopted by the states.

It's interesting to note that the compromise that brought about the Bill of Rights was a gentleman's agreement -- there were no legal requirements that a bill of rights be drafted or adopted, another point of incongruity between the American process in 1787 and the European process today.
 
If you want to split hairs on exact dates, OK, have at it.
The point is the AofC were not implemented as a temporary form but were intended to be the permanent form of government. After the AofC was adopted and tried for a period of time was it realized the Founding Fathers didn't get it right and something different was needed. They didn't get it right the first time. It took the Founding Fathers a few years to work out the problems. Using the mistakes from the AofC the Founding Fathers were able to see what had worked and what hadn't. So it wasn't like they were starting from scratch with the Constitution. When the Constitution was then submitted for ratification the states had already seen what hadn't worked and what wasn't acceptable to them so, again, it wasn't like they had started from scratch.
 
If you don't want dates split, don't bring them up.

I'm still failing to see the point that you're trying to make in all of this.

No, the American Constitition didn't spring suddenly to life in 13 seconds out of a vacuum. Pertinent documents that influenced the Constitution, at a minimum, went all the way back to 1215, which only serves to reinforce my original point that no matter how you cut it, the Europeans are still blowing chunks, unable to come up with anything even remotely close to a European Union Constitution despite what, 3 tries and 5+ years?


Once again, though, the salient point remains that when they convened in Philadelphia, members of the Constitutional Convention believed that they were gathering to amend the Articles of Confederation. Few people were thinking in terms of an entirely new framework.
 
The points with the dates is it took them from 1777 until 1787 to finally get things done. Not just 3 or 4 months but a period of several years working within a system and then changing it. And as you mntioned, there was a long period of history even prior to draw from, not that the ideas in the Constitution were something new drawn up in a short period of time but ideas tossed around by Founding Fathers even prior to 1777.
Even after the Constitution was written, and even ratified, there were a number who believe the US would not survive.
I do agree somewhat with the point on the European efforts, however, one also has to look that those countries are a different animal entirely than trying to gather 13 colonies to join together. It's not like VA invaded and occupied MA. There is just a different set of circumstances and long history which makes their efforts completely different.
 
We were at war until 1783 - that could account for some of the delay. The lack of decent roads (and telephones and e-mail) could account for some more of it.

Speaking of working within a system, the problem with the Articles of Confederation was that the states' representatives could not be forced to participate in anything. You can't get much done if nobody shows up.

John
 
John, you and I must never, ever try to order a pizza together. We agree so rarely that finding toppings we'd both like would take forever!

I have always thought of the non-coercive nature of the Articles of Confederation as a positive thing rather than a problem. The original idea was "...free and independant States...," after all, and those words come from a time when a "State" was not a political subdivision but rather a nation.

The Articles could have used some revision, but the Constitution was a power-grab or consolidation of the sort that nearly always follows a successful revolution. Oh, it sounds good at first glance -- but it lacks provision for enforcement of the limits it proposes for the the Federal government, while incorporating all manner of work-arounds (Commerce clause, General Welfare clause, etc.) for those very limits. It has a built-in bias towards the centralization of power and in that, it reflects the biases of the majority of the unelected men who drafted it and bypassed most State legislatures in the ratification process.

(At the very least, violating or conspiring to violate the Bill of Rights should be a capital offense. That might slow down the foes of the First, Second and Fourth Amendments!)

The Constitution was our version of the Bolshevik take-over of the Russian Revolution. Oh, it turned out better at first (unless you happened to be a slave), but free Americans were less free when the Constitution was ratified and have become even less free with the passage of time.

...And if the language usage in that document was so very plain, how come it takes nine black-robed experts to tell us what it means?
 
The following summary was Googled up at random. Imagine trying to arm and feed an army when many of the states wouldn't cooperate. Feel free to skip to the George Washington quote at the end. John
____________________________

The following are the major challenges to governing through the Articles of Confederation.

Congress (the central government) was made up of delegates chosen by the states and could conduct foreign affairs, make treaties, declare war, maintain an army and a navy, coin money, and establish post offices.

However, measures passed by Congress had to be approved by 9 of the 13 states.

Congress was severely limited in its powers. It could not raise money by collecting taxes; it had no control over foreign commerce; it could pass laws but could not force the states to comply with them.

Thus, the government was dependent on the willingness of the various states to carry out its measures, and often the states refused to cooperate.

The articles were virtually impossible to amend, so problems could not be corrected.

In the words of George Washington, the government created by the Articles of the Confederation was "little more than the shadow without the substance."
 
"Shadow [of a government] without the substance?" I'm totally down with that. Other than to deal with other nations, where's the need? The States already had governments!

There was no reason to make amendments easy or to hand vast powers and the ability to grab for more to the Federal governent, other than as a way to oppress the people. The IRS alone is a source of huge problems. State-by-state, it'd be a lot easier to change and try new things.
 
What's the need? Re-read the part about coinage, the mail, etc. The states were not cooperating according to the people alive at the time, including George Washington.

John
 
Antipitus, untill I can read and digest the referenced articles I will only reply to this, the Federalist Papers and the Anti Federalist Papers, are in my opinion the best and most informative way to understand the meaning and interpritation of the Constitution, The fact that the Document was written in the common language was not an accident it was done so on purpose so that the common man could read and understand it well enough to accept or reject it as the case may have been, there was no effort to use the jargin of Lawyers as that would not have been a clear and understandable way to present this Doc. to the public for their Ratification, (that is an asumptionon my part).

I personally find that with my limmited Education and understanding of things in general, reading the articles of the Bill of Rights as an example are perfectly clear as I read the words, and do not try to dicern a deeper meaning in them, I don't analize the phrase I simply read, and it seems to me to be very straight forward.

The one thing that I find facinating is the Phrase THE RIGHT OF THE PEOPLE, this single phrase is so many times denied especially in regard to the second amendment, it is perfectlly clear that it means the People in the First but has not been so in the second, I fail to understand how the same words can be good in one but not the other, boggels my wittle mind.

In the book The Second Amendment Primer, by Les Adams, printed by Palladium Press, there are several explinations as to the reason behind the Second Amendment and the necessity of it's inclusion into the Constitution, among which was the logic that the people would be garenteed the right to have in their possetion at all times a weapon to use as a hunting weapon to secure food for their families and IF CALLED UPON to aide in the defence of themselves and or Country, So it was the people in effect that insisted on the BILL of RIGHTS, to be added to the Constitution as a condition of Ratification of the Doc., that in itself would seem, to me a pretty clear statement that the People and their understanding of the Constitution was paramount in their minds and that they had a fair understanding of the thing, which would rule out any fancy language argument, and I personally think it is pretty clear the meanning of the Constitution if you leve out the Lawyers attempt today of interpritatin of it, to say what they want it to say.

As to the Militia, I just don't have the Education to put into words, that would explain my understanding of it, other than to reference it to the example still applied today, with the National Guard Drills, and the Reservist being called to service for two weeks out of the year normally, unless called into active duty, The Milita of the day were very much like the Reservist of today in that they had to gather and drill to keep their skills up and tuned so that if called upon they would be ready and Regulated in their preformance of duty to serve. But make no mistake about my reference the Militia, and the Reservist were not on are not of the same.
 
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In all fairness, a "plainly" written passage becomes very ambigious when you have 2 different readings. Now imagine 200 million different interpretations.
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This is how I've heard it put. Common Law has taken a very long time to generate "legalese", which is nothing more than precise definitions for various terms that everybody has to agree on. That's because during all that time there have existed people trying to weasel their way around existing wording.

If you don't have definitions (axioms in mathematics), you can't have laws (theorems in mathematics). And both axioms and definitions have to be narrow and exact to make any sense.
 
Antipitas, I have the Documents downloaded and saved in my PDF File Folder, I will Read then today, and try to respond to your Poat #21 ASAP.
 
Antipitus, let me give this a shot, I read both articles you refrenced me to and found them interesting and just a bit over my vocabulary but I tried to stick with the topic.
The post in question here started with #15, -#18 -#19 -#21, #32, and finally #34 all lead up to here.

To start with let me say that My personal conviction is that the Constitution can only accurately be Interpreted by the Origional Language and the understanding of the day, using the Common Language Translation if required, but at the same time, there is something to be said for the point of view, where two oposing sides can come to a same or simular point of understanding on the interpretation of law with regard to the Constitutional Statutes, and every one agree that it is, under the circumstances the best understanding of the origional intent, but only in those cases where the Constitution is not perfectly clear on the Message, Now to the issue of Clear Constitutional intent, there should not be any grounds for a different opinion, and must be applied as writen, in the case of Precedent of law if the Precedent is Contitutionaly Founded it can and probably should stand, but in any Precedent of law not founded in Constitutional Facts, It should not stand, on this last issue a perfect example would be ROE V WADE as this rulling by the Supreme Court was based on deception, and lies by the Defendants, I can not recite the exact items, but at any rate, this rulling no matter how long it has been used as a Precedent of law, is not a Constitutional issue and after the fact was discovered, that it was rulled in favor of the defendants based on deciption and falsehoods, it should be Stricken from the books, Regardless of the Precedent of the past applied. It is a fact that the Courts hold great sway over the issue of Precedent and to that I say, if they can be backed by trully founded Constitutional basis then they should also stay, but if not they also must go, as to the case of Brown, I'm sure it can be found to be applied to a Constitutional Muster, that would satisfy all concerned, I don't think it would be wise to throw out all the presidences, but as I stated if they can not be backed by Constitutional Writings, they must not be allowed to remain, no matter what. And should not be allowed to sway a Supreme Court Justice nor any Sitting Judges Opinion,when deciding cases before them, based on a Faulty Precedent of Wrong Law.

I may not have addressed all the issues but I tried to cover the ones that stuck in my mind after reading the Two Doc's, If I missed anything lt me know.

If I was wrong in my understanding of the Articles, let me know and I will go back and readdress the thing until I can understand it with some degree of success.

This is has been a strain for an old man, with a 8th grade Education, but I gave it an honest shot!

I forgot this point, which I did not understand, which was the reference to the 14th Amendment, you will have to help me out here.

Kelly J
 
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Roberta X , just on the topic of the Pizza Order, I must inform you of an error, you can both order exactly what you want for toppings, it is called a Half & Half, so in effect you would be ordering a COMPRIMISE PIZZA, that would be palitable to you both, Understanding and dealing with your differences are the key to HARMONY.
 
What about the four border slices, which invariably end up having some of one person's toppings lying partly on the other person's two border slices?

"Dude, your freakin' banana peppers are on my side!! EWW!"

"Well, brah, your pepperoni slice lost a sliver of itself on my side! And is that your mushroom, too?!"

;)

-azurefly
 
...I was kinda kiddin' about the pizza anyway, as I like any of the traditional toppings except anchovies.... However, around here I can call up the kids at Bazebeaux Pizza an' get a pie with all manner of out-of-left-field oddiments (have to admit capers are a nice touch) atop it. (At my door in about 15 - 20 minutes, too; but alas, the one in my neighborhood can't deliver beer or wine, so it's a good thing I'm Temperance).

Constitutionally, the Pizza Example has been used to illustrate the Principle of Reconstitutive Unanimous Consent: the people who want anchovies band together and get one with tiny dead fishies on it and the folks who don't, go after other food options. Applied to government, this only works out if the powers given government are very few and very limited; otherwise the government starts banning various toppings and requiring other toppings and nobody gets a pizza they really like.
 
RobertaX, and here I thought I was Offering some real constructive solution to a real difference of opinion, Just shows to go ya.
 
Kelly said:
To start with let me say that My personal conviction is that the Constitution can only accurately be interpided by the Origional Language and the understanding of the day, using the Common Language Translation if required,
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One of the reasons that Noah Webster created his first dictionary (1828), was to document the meanings of words. There is some argument over whether he did this to document the legal writings (Constitution and amendments) of the times. The result was that by using the first edition of Webster's dictionary, we have a ready resource as to the definitions of words and what they meant to the people of that time.

The other resource that is used is Sir William Balckstone's Commentaries on the Laws of England. While there is no such thing as "common law" at the federal level (many States still use the "common Law"), it is here that many of the political concepts of the founders came from.

With these two sources, one can answer the question, "What is the meaning of..." as the people of the founding generation understood words and legal concepts to mean.

You are correct in your understanding in the use of Stare Decisis or the doctrine of precedence. No precedent should stand that is based upon faulty logic and reasoning. If that means that whole blocks of law should fall, so be it.

The basic problem we have within the Judicial system is the same problem we have with the Legislature and the Executive. It is Power. Each branch of the government wants it. They will give some power to the other branches, if it means they themselves will retain some portion of it.

Thomas Jefferson once said, "In matters of Power, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution." But Jefferson was an idealist. Doesn't make what he said wrong, just that he had a hard time with reality!

Washington, ever the realist, offered this observation, "Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action."

Yet, what is it that the common man remembers most? It is Jefferson's ideal. Washington's admonition has been forgotten, in the midst of our nations luxury and plenty. We tend to think that the Constitution does indeed bind the hand of government. We have grown complacent. Madison had this to say about our common sloth, "It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much ... to forget it."

Yet, forgotten it we have.

We are now faced with a system that has been built upon court precedent after precedent. Granting powers to the government that would have amazed even Hamilton!

Which is precisely why we need to engage the general public in debates about originalism. Turn it around at the grass roots and we can then proceed to argue our points to the government itself. Remember, we get the type of government we deserve.
 
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