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Well, there are two points. First, we live in a constitutional democracy. The constitution is supposed to be the set of meta-rules which dictate how and what t

Well, there are two points. First, we live in a constitutional democracy. The constitution is supposed to be the set of meta-rules which dictate how and what the government can do. Like it or not this turns out to come down to literary interpretation. There are two major schools of thought about how one should interpret literature, and I prefer the one that suggests the context in which something was written should be taken into consideration (the other school, which happens to dominate departments of English Literature, is kind of nutty). You may think that constitutional democracy is a Bad Idea, in which case feel free to argue that point. But within that framework, we live by rules, and what those rules mean -- or more importantly, what people think they mean -- matters. This kind of thinking is unappealing to programmers and engineers -- it's a concept generally known as "social construction". Our government is a social construct. So is money. So is bitcoin. So are mathematical proofs (!) -- at bottom, a mathematical proof is an argument that convinces mathematicians. If you don't want the FBI to shoot you, you might want to consider that having a shared understanding of the laws they believe they are enforcing is a Good Idea. Second, it's interesting to realize that most of the stupid stuff happening today was anticipated, and the fine points argued over, by a group of smart guys over two hundred years ago. It's sad that the level of debate today comes down to arguing over what these guys meant by something, especially when most of those doing the arguing lack basic comprehension skills.

galaxyLogic 12y ago
> the context in which something was written should be taken into consideration Yes surely if we want to understand what they meant when they wrote their opinions. But those were just their opinions. They were not the law that was passed. A law is not an opinion. What is it? It is a text. Who interprets it? The Judges. For a judge to say: "I rule this way because I think this is what Jefferson wanted" is a cop-out. It would be more honest for them to say: "I rule the law this way because I'm the one who interprets the law here".
- sjwright 12y ago
  Your argument is that law should be treated like a clean-room implementation with zero original context. The original interpretation is apparently meaningless. But interpretations by random judges are fine? And it's appropriate for these random decisions to become precedent? I've never understood this mindset. It's treating the English language like machine code, as if it could be written with a degree of deterministic certainty. Our human language is littered with reasonable unwritten assumptions, words that slowly evolve, words that completely change meaning. If we happen to know what the original authors of the bill meant with their words, why should we substitute their known interpretation with that of some random judge? Is the American system really suffering from too much Jeffersonian-ism? I'd argue the opposite.
  - Tloewald 12y ago
    Hilariously, this is the rival school of thought in literary criticism. The author's intent doesn't matter.
Tloewald 12y ago
@galaxyLogic: Yes but judges are people, and their decisions are based on what they believe the rules they're enforcing mean, and they are interpreting those rules based on parsing the meaning according to their theory of how you comprehend text which, for most people, comes down to "am I understanding this sentence as the person who wrote it meant it?" So if we want to predict, understand, or shape their decisions we are perforce interested in both what they currently think those rules mean and what and how we might persuade them differently. There is no cosmic law that will determine whether our idea of what is right will prevail -- we are a nation of humans and not cosmic laws. Imagine you are a successful actor who is convinced that he does not need to pay income tax because he has read the constitution and according to his reading he does not need to pay income tax. Even if he is "correct" for some value of correct, it does him no good when the IRS shows up at the door.
galaxyLogic 12y ago
I must amend that I do have a lot of respect for the wisdom of the framers and of the Constitution. Mostly I would say for the wisdom of the Constitution, because it does not matter much what they thought when they wrote it, does it?
- Tloewald 12y ago
  Does it matter whether a person who writes a sign saying "enter at your own risk" means it as a joke or as a genuine warning?
  - sjwright 12y ago
    Yes, if the original meaning is readily available to the reader.
    - Tloewald 12y ago
      I meant the question to be rhetorical! ;-)
galaxyLogic 12y ago
I appreciate your points and they make me think much, so thank you. Apologies for everyone for being a off-topic already. Here's what I think at the moment: Congress is the body that makes the laws. Not the judges. The current congress is responsible not only for the laws they passed, or didn't pass, but ALSO for all the laws they didn't update, or did not make unambiguous enough for the judges to interpret. A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those. This my opinion is not based on what I think the original framers thought would be good. My opinion is based on what I think would be good.
- Tloewald 12y ago
  "A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those." Judges in low level courts make decisions based on evidence and the law. Appeals courts take the constitution into account. The supreme court only considers the constitution (the facts of a case matter only insofar as to how the law is being considered). In any event, a court will tend to place weight on the intentions of the people who wrote a law vs. the current congress. E.g. a law endorsing "gay parades" written in 1850 would be understood to mean something quite different from an identically worded law written in 1980.
taejo 12y ago
> There are two major schools of thought about how one should interpret literature, and I prefer the one that suggests the context in which something was written should be taken into consideration (the other school, which happens to dominate departments of English Literature, is kind of nutty). The Constitution is not literature, and this confuses the goals of law interpretation and literature interpretation. When interpreting the law, we are trying to find the meaning of the law. The "author is dead" school of analysing literature has a different method not because they are nutty, but because they have a different goal: not to divine some true meaning of the text, but to understand the experience of reading the text -- something which is completely irrelevant to the law. The only reason that anyone could think that a "textualist", context-free interpretation of the law makes sense is that the US was founded relatively recently. Older countries have no choice to deal with the fact that meanings change, and that the law makes no sense if we pretend it was written today.

galaxyLogic 12y ago

> the context in which something was written should be taken into consideration Yes surely if we want to understand what they meant when they wrote their opinions. But those were just their opinions. They were not the law that was passed. A law is not an opinion. What is it? It is a text. Who interprets it? The Judges. For a judge to say: "I rule this way because I think this is what Jefferson wanted" is a cop-out. It would be more honest for them to say: "I rule the law this way because I'm the one who interprets the law here".

sjwright 12y ago
Your argument is that law should be treated like a clean-room implementation with zero original context. The original interpretation is apparently meaningless. But interpretations by random judges are fine? And it's appropriate for these random decisions to become precedent? I've never understood this mindset. It's treating the English language like machine code, as if it could be written with a degree of deterministic certainty. Our human language is littered with reasonable unwritten assumptions, words that slowly evolve, words that completely change meaning. If we happen to know what the original authors of the bill meant with their words, why should we substitute their known interpretation with that of some random judge? Is the American system really suffering from too much Jeffersonian-ism? I'd argue the opposite.
- Tloewald 12y ago
  Hilariously, this is the rival school of thought in literary criticism. The author's intent doesn't matter.

Tloewald 12y ago

@galaxyLogic: Yes but judges are people, and their decisions are based on what they believe the rules they're enforcing mean, and they are interpreting those rules based on parsing the meaning according to their theory of how you comprehend text which, for most people, comes down to "am I understanding this sentence as the person who wrote it meant it?" So if we want to predict, understand, or shape their decisions we are perforce interested in both what they currently think those rules mean and what and how we might persuade them differently. There is no cosmic law that will determine whether our idea of what is right will prevail -- we are a nation of humans and not cosmic laws. Imagine you are a successful actor who is convinced that he does not need to pay income tax because he has read the constitution and according to his reading he does not need to pay income tax. Even if he is "correct" for some value of correct, it does him no good when the IRS shows up at the door.

galaxyLogic 12y ago

I must amend that I do have a lot of respect for the wisdom of the framers and of the Constitution. Mostly I would say for the wisdom of the Constitution, because it does not matter much what they thought when they wrote it, does it?

Tloewald 12y ago
Does it matter whether a person who writes a sign saying "enter at your own risk" means it as a joke or as a genuine warning?
- sjwright 12y ago
  Yes, if the original meaning is readily available to the reader.
  - Tloewald 12y ago
    I meant the question to be rhetorical! ;-)

galaxyLogic 12y ago

I appreciate your points and they make me think much, so thank you. Apologies for everyone for being a off-topic already. Here's what I think at the moment: Congress is the body that makes the laws. Not the judges. The current congress is responsible not only for the laws they passed, or didn't pass, but ALSO for all the laws they didn't update, or did not make unambiguous enough for the judges to interpret. A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those. This my opinion is not based on what I think the original framers thought would be good. My opinion is based on what I think would be good.

Tloewald 12y ago
"A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those." Judges in low level courts make decisions based on evidence and the law. Appeals courts take the constitution into account. The supreme court only considers the constitution (the facts of a case matter only insofar as to how the law is being considered). In any event, a court will tend to place weight on the intentions of the people who wrote a law vs. the current congress. E.g. a law endorsing "gay parades" written in 1850 would be understood to mean something quite different from an identically worded law written in 1980.

taejo 12y ago

> There are two major schools of thought about how one should interpret literature, and I prefer the one that suggests the context in which something was written should be taken into consideration (the other school, which happens to dominate departments of English Literature, is kind of nutty). The Constitution is not literature, and this confuses the goals of law interpretation and literature interpretation. When interpreting the law, we are trying to find the meaning of the law. The "author is dead" school of analysing literature has a different method not because they are nutty, but because they have a different goal: not to divine some true meaning of the text, but to understand the experience of reading the text -- something which is completely irrelevant to the law. The only reason that anyone could think that a "textualist", context-free interpretation of the law makes sense is that the US was founded relatively recently. Older countries have no choice to deal with the fact that meanings change, and that the law makes no sense if we pretend it was written today.