roachboy

it seems to me that the claim that a "legal document says what it says"--particularly when lnked to a kind of strict constructionist ideology more generally--is naieve---but it is certainly less problematic that the "original intent" doctrine also dear to the feddies and other such.
language is not static.
the social-historical is not static.
legal systems are not static.
the continued functionality of legal systems is a result of its ability to adapt to change.

it seems absurd to pretend otherwise--unjustifiable conceptually, wrong empirically.

it seems to me that the strict constructionist crowd wants to turn the american common law system into a variant of civil law, under which law is assumed to be perfectable linguistically, and so the functions of judges are in theory reduced to that of functionaries. this would entail a wholesale change in the present american legal system. the only clear result i can see following from this is a radical increase in the likelihood of constitutional crises.
inside most civil law systems, this idea that law is perfectable works out to be an illusion--just as in the states, judges are continually interpreting statutes to apply them to unforeseen situations. it just works at the level of custom. at least in the american system, there are levels of challenges to such interpretations that can bring them to the attention of the supreme court fairly directly.

and btw--judges are not legislating morality--they make decisions on interpretations of existing law of arguments made in court that would fit or shift various issues under the purview of particular existing law(s). the appeal system seems to operate reasonably well, in that these decision can be reviewed repeatedly--the function of these reviews is to whether these interpretations are or are not within limits---which are themselves set by convention--that is by changing assumptions/circumstances.


the tactical function of the strict interpretation school is obvious--the empty charge of "activism" is simply code for interpretations of the constitution that the right does not like. this meme is very much about the history of the contemporary right, one that reaches back to the hooverite opposition to the new deal. the relay between formations is the hoover institute. if you look at how the various papers that hoover generates on legal questions, this recoding of hooverite opposition to roosevelt is near obsessive. look for yourself. i did quite often over the four years i was in palo alto. it is an instructive process.

in order to find a legal rationale for stripping away law the right does not like, they are willing to transform radically the american legal system. the logic of their position would basically alter the status of precedent, it seems to me. i dont see on what possible basis this can be seen as increasing any kind of functionality. but it will serve to enable the right to eliminate things unilaterally. in the name of reducing activism, of course.

i dont see anything important or interesting in the arguments for anything like strict construction. i see thinly veiled political posturing. i think the american common law system is among the few things that this system got more or less right. that of course doesnt mean that the application of elements within that system are hunky dory (the system itself is shot through with extra-legal features that, in the end, are determinant of usage)--but the logic of the system itself seems functional.

__________________
a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite