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roachboy · 07-06-2005, 05:26 PM

ok on your first example and the julian sanchez piece.
sanchez does not seem a very bright guy to me. but no matter.
the reason that marijuana grown for private use within a given state can be argued to fall under interstate commercial law woudl seem to me to have more to do with the tactics decided upon by the lawyers involved with that particular case than anything like the basis for an argument about the preconditions that might have shaped those tactical choices.
curiously, i would bet that the argument mirrored the heap question (which is an elementary semantic matter and not at all interesting beyond that--there is a parallel version to do with the question of infinity--can you get to it additively--is it a question of an extremely long finite series plus a certain number, or is it of a different order...yes yes, whatever. the number of angels dancing on the head of a pin.)
i would bet that the argument ran in two directions:
1. interstate commerce laws provide a precedent for federal law overriding state law and maybe
2. that there is nothing to guarantee that any particular crop of weed would not find itself dissolved into the larger presumably interstate market for such and that therefore invoking those laws that regulate its production would make sense because there is no distinction that you could make between any given marajuana crop and the stuff that circulates across states--the sticky thing would be the growers saying no no--but i coudl imagine ways a slick attorney could get around that.

you would get the same kind of thing in a civil law tradition--one that bypassed the notion of precedent and understood that legislation could be written in such a way as to make simple application possible--even there, you could often find cases moving through the system based on strange hodge-podges of legal references etc. because it would be tactically advantageous to do that.

so i dont know what the problem really is here.

clearly, for sanchez and maybe for you, there are particular outcomes of this process that you do not like and so you have figured out a way to oppose the process AND those particular results. but you do not have any coherent way to link the two.

on the matter of intent:

what sources are you talking about, these clear and unambiguous statements of intent on the part of the framers?
i know that you cannot really be talking about the process of framing the constitution itself.
i assume that you might be talking about the federalist papers and such, but they are ex post facto political arguments that involve conflicting REPRESENTATIONS of intent, which are of a piece with the larger arguments being made in those texts--and the federalist papers too have no legal status.
they are sometimes a fun read.
they can help you figure out stuff about early american political culture. they can be informative.
but they are not law, and statements about intent in them are polemical.

maybe some conservative historian has found a trove of documents from many of the framers entitled WHAT I REALLY MEANT or something--but if so, it's pretty strange no=one has heard of it.

i'd say you'd be better off arguing that you had a seance. you'd know more about intent through it than you are going to establish any other way.

and i was not joking that even as you read this you cannot know anything really about my intent in writing. i meeant it as a serious critique of the idea of original intent. if you cant manage it in real time, what on earth makes you think you can do it in relation to the past?

and besides, even if you could know about intent what possible difference does the framer's intent make?
their motives were not ratified--the document they produced was.

if the constitution said something like "in a matter of conflict check with madison or jefferson" or "what this document is really about is the psychological understandings that shaped it, so dont worry about the actual text just think about our states of mind" then maybe you'd have a leg to stand on.
but it doesnt.

07-06-2005, 05:26 PM	#28 (permalink)
roachboy Super Moderator Location: essex ma	ok on your first example and the julian sanchez piece. sanchez does not seem a very bright guy to me. but no matter. the reason that marijuana grown for private use within a given state can be argued to fall under interstate commercial law woudl seem to me to have more to do with the tactics decided upon by the lawyers involved with that particular case than anything like the basis for an argument about the preconditions that might have shaped those tactical choices. curiously, i would bet that the argument mirrored the heap question (which is an elementary semantic matter and not at all interesting beyond that--there is a parallel version to do with the question of infinity--can you get to it additively--is it a question of an extremely long finite series plus a certain number, or is it of a different order...yes yes, whatever. the number of angels dancing on the head of a pin.) i would bet that the argument ran in two directions: 1. interstate commerce laws provide a precedent for federal law overriding state law and maybe 2. that there is nothing to guarantee that any particular crop of weed would not find itself dissolved into the larger presumably interstate market for such and that therefore invoking those laws that regulate its production would make sense because there is no distinction that you could make between any given marajuana crop and the stuff that circulates across states--the sticky thing would be the growers saying no no--but i coudl imagine ways a slick attorney could get around that. you would get the same kind of thing in a civil law tradition--one that bypassed the notion of precedent and understood that legislation could be written in such a way as to make simple application possible--even there, you could often find cases moving through the system based on strange hodge-podges of legal references etc. because it would be tactically advantageous to do that. so i dont know what the problem really is here. clearly, for sanchez and maybe for you, there are particular outcomes of this process that you do not like and so you have figured out a way to oppose the process AND those particular results. but you do not have any coherent way to link the two. on the matter of intent: what sources are you talking about, these clear and unambiguous statements of intent on the part of the framers? i know that you cannot really be talking about the process of framing the constitution itself. i assume that you might be talking about the federalist papers and such, but they are ex post facto political arguments that involve conflicting REPRESENTATIONS of intent, which are of a piece with the larger arguments being made in those texts--and the federalist papers too have no legal status. they are sometimes a fun read. they can help you figure out stuff about early american political culture. they can be informative. but they are not law, and statements about intent in them are polemical. maybe some conservative historian has found a trove of documents from many of the framers entitled WHAT I REALLY MEANT or something--but if so, it's pretty strange no=one has heard of it. i'd say you'd be better off arguing that you had a seance. you'd know more about intent through it than you are going to establish any other way. and i was not joking that even as you read this you cannot know anything really about my intent in writing. i meeant it as a serious critique of the idea of original intent. if you cant manage it in real time, what on earth makes you think you can do it in relation to the past? and besides, even if you could know about intent what possible difference does the framer's intent make? their motives were not ratified--the document they produced was. if the constitution said something like "in a matter of conflict check with madison or jefferson" or "what this document is really about is the psychological understandings that shaped it, so dont worry about the actual text just think about our states of mind" then maybe you'd have a leg to stand on. but it doesnt. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite