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dk--what original intent/strict construction does in order to compensate for the fact that as a procedure it chops off precedent as a frame for adapting the constitutional system to changing situations/times is to introduce stuff like the federalist papers and the (partial and problematic) accounts of the deliberations around the framing of the constitution itself as substitutes. *that* is a violation of the rules of the constitution itself. the federalist papers have no legal status--as historical documents, they're interesting--but as law, they're historical documents. the minutes of the convention are also historical documents. elevating either set of materials to boundary conditions that shape how the constitution should be interpreted amounts to a basic change in the rules of the game.
i would think you'd know this, given what a Big Deal the "intent" of the framers is to you.
that's why i argue that strict construction is incoherent every time it comes up. i didn't say it this time because i get tired of typing the same things over and over. but that's the crux of the argument. another way: you can't do what you'd like to do. it doesn't and cannot get off the ground.
what would the consequences of it be? well first off it is the "strict" position that rests on an arbitrary definition of what is and is not relevant as boundary conditions that shape legal decisions. so the first thing that would result is a kind of conservative legal despotism masequerading as a return to "basic principles".
it would be consistent if this viewpoint resulted in a considerable restriction of the role and functions of judges--it'd make them like judges are in an ideal-typical civil law system (ideal-typical because in reality, it's not like this--judges interpret)--they'd be functionaries. this because the right fears "judicial activism" which generally means latitude to interpret because latitude to interpret could result in guns being restricted and we cannot have that no no.
a correlate of this is that law would have to be written in a basically different way than it currently is, and enforced much more strictly. i suppose in principle that you'd support that, but i doubt you would once the reality of this vague idea began to be felt.
as to how you'd go about lining up contemporary capitalist social relations with the fantasy world of yeoman farmers...i dunno. it would not surprise me to find in a hypothetical "revolt" far right "patriots" imitating the khymer rouge. ugly stuff. hope i never have to see if i'm right. i doubt seriously i will have to see if i'm right, though, because there is and will be no revolt from the right.
slims: i don't think you understood my argument about original intent/strict construction--hope this clarifies it. skip over the last paragraph...it's not important.
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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear
it make you sick.
-kamau brathwaite
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