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Originally Posted by 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.
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the only problem with the 'not static' claims is that as times have changed, so has the language. Our constitution and laws were/are based on common english law and as such, words have different meanings now than they were back then. Take the second amendment as an example.
Regulate is defined as -
1. To control or direct according to rule, principle, or law.
2. To adjust to a particular specification or requirement: regulate temperature.
3. To adjust (a mechanism) for accurate and proper functioning.
4. To put or maintain in order:
and we've gone over the definition of militia many times as it was defined back then.
If we were to maintain the 'not static' rendition of our legal documents, they would have to be rewritten every time that a definition changed slightly and then have to go through the ratification process, every time. That is certainly not feasible.
Maintaining a 'static' state, or consistency in definitions, is the only way to keep a legal system flowing smoothly.