INTERPRETATION: Jonathan Rowe replies to Ben Bateman

...The problem is that the phrases over which we argue are all written in broad generalities, and the Framers left behind no "book" of specific intent that tells us exactly how the norm is to be applied vis-a-vis every single thinkable specific factual scenario.

In European "civil code" nations, they attempt to do this with their legal codes and the result is hundreds of thousands of pages in civil codes. In common law nations like America our laws tend to be more general and we expect Courts to fill in the many of the specific gaps, with the result being hundreds of thousands of pages of appellate case law. ...

What's the point of all of this? We have a very general statute, and yet many specific-fact questions arise under that statute? Who fills in the gaps? Courts do (sometimes administrative agencies help them out. But even there many "originalists" question the constitutionality of such agencies). This is not to say that the courts just "make things up." No, the fair use test, even though it is written in a very broad manner, points us in certain directions with its four part test. But it hardly answers any specific questions. A lawyer drafting a contract wouldn't dare leave such gaps by writing in such general terms. She'd be sued for malpractice.

That Constitutions tend to be such relatively short documents, with many provisions written in broad generalities, like "cruel and unusual punishment," or "the freedom of speech," or "privileges or immunities" signifies a specific intent on the part of the Framers to construct a document with "built-in flexibility" whose meaning could change over time.

Back to the $1,000 example. Here's a more reasonable one: Let's say a landowner rents out a huge parcel of land to a community for 200 years. The landowner is to charge the community a "reasonable" amount from year-to-year.

So 125 years later, what's a "reasonable" amount? That's what Constitutional interpretation is like.

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posted by Eve at 5:06 PM VOTE

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