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The Economist: “Johnson: Originalism’s sin” – Kenneth Ellman responds

Judicial interpretation of the American Constitution was discussed in “The Economist” and elicited many comments. The never ending discussion as to whether we look to original meaning or to current understanding or a combination of both was again brought face to face with the presence of Supreme Court Justice Antonin Scalia. The original article in “The Economist” can be read by clicking the link below. My view follows with a response to one of the other readers.

From Kenneth Ellman,, Box 18,Newton, New Jersey 07860.
In response to The Economist article “Johnson: Originalism’s sin” dated October 17, 2013, Copyright 2013 Kenneth Ellman. All Rights Reserved. Language Does Have Meaning. October 20, 2013.

When we try to understand what we as human beings write and speak it is useful to reflect on our purposes in engaging in this activity. Law is to give us an alternative to brute power, force and the individuals need to kill. Law is generally perceived as a method to control the use of force. Law offers an opportunity for mutual commitment that the community will enforce the Law for all, regardless of political persuasion, power or poverty. Law is an agreement amongst us as to how we will live with each other. We trust the Law as the alternative is to trust our ability to use force against one another, and we prefer when possible not to do that as individuals. Let the law use the force. Law is language. You cannot separate them. The problem with Language and Law, is that what is agreed upon and expressed as language, must remain agreed for the relationship between Law and Language to work. If we have laws where the meaning of the text is allowed to be construed differently from its plain meaning at the time of enactment, then we have laws that change without legislation. This is further complicated in that the Constitution of the United States is only to be changed by a limited and special kind of legislation, that being the Constitutional Amendment process. This slow process to Amend protects us all.

SO when a Jurist says we must look to the original meaning of the words to understand how we are to be governed, it is akin to saying we must speak the same language to communicate. If words mean different things to the same people in the conversation we will have problems. Mathematics works hard to savor expressions that are not subject to misinterpretation or grievous error. Mathematics also has proofs. Mathematics is also a language. We give short shift to our English language, and endanger our well being, when we pretend that words have changing meanings in Law and so our Law can never be known with any certainty. I do not think we want to live under a legal system where the law is so subject to interpretation that we simply do not know the meaning of our own language. A scary thing indeed to be confronted with. We are not trapped by the past meaning of words, since we are never trapped by the Law. We are a people with Democratic institutions and a legislature that can change laws by lawful procedure. So if a law that was once salutary is now in disrepute, then the Democratic process outlined by our Constitution allows Law to be changed. But that Democratic process requires some agreement amongst the people and that is what we savor and that is also our savior. That Democratic agreement is our mathematical proof of Language and Law, it is our meaning.

So if a Jurist such as Antonin Scalia believes that we must adhere to the plain meaning of the law and look to such meaning as what the words meant when enacted, at least we have a way out of Law having no meaning at all. We have enough difficulty with the political and other corrupt influences as to how laws are applied and enforced. At least Not let Us throw away the only lifeline we have to language as communication. Do not pretend that words do not mean what they say. When Antonin Scalia seeks to know and use the actual meaning of the words in our Law, he protects us all. Kenneth Ellman, Box 18, Newton, New Jersey 07860. Email: Copyright 2013, Kenneth Ellman, All Rights Reserved.

Kenneth Ellman responds to Gordon L, October 21, 2013,
Ref Article : “ Johnson: Originalism’s sin”

Gordon states:
“It is because of jurisprudence such as this that I, and people like me, resist the imposition of a constitutional bill of rights on a Parliamentary democracy: it chains the people of the future to the values of the past.”

Kenny responds:
In a Democracy, the Constitutional framework tries to balance the rights of the individual with the legislative process of Democratic Majority. The Jurisprudence you refer to is the contract that is made by Democratic peoples that their Constitutional law will not change except upon due and proper act of the elected legislature and the people being governed. The only “chains” here are the chains of democracy and rule of law which protects us all and requires consent of the governed. You seem to advocate that unelected Judges should be allowed to change Constitutional Law by Judicial Opinion, which upsets in a violent way the civil peace obtained by democratic agreement. When the Constitution is changed by other than the Democratic consent of the governed, the integrity of the law is assaulted. The job of the Judiciary is to defend the Constitution, not change it. Change is left to us, through our voting and legislative power, as it must be. You further seem uncomfortable with the age of an idea, law or practice. Just as in the laws of science, the legality of a premise and practice in our legal system cannot challenged by age, but only by its validity. The integrity of law is determined by the Constitution, the Democratic process and the freely chosen beliefs we seek to live under. Not by its age. I tried to address this in my previous comment. I agree with the analogy of G Graham. Kenneth Ellman, Box 18, Newton, New Jersey 07860.