Scalia had a coauthor, Bryan Garner, a preeminent lexicographer. I think Mr. Garner knows a thing or two about language. If the constitution is "alive" and subject to the changing whims of whatever is popular at the moment then we might as well not have a constitution, or any written law, at all.
Semantic and philosophical drift is a real problem for the authors of codices. Is the amendment process enough to adjust the document to stay in keeping with language's and society's changes? cn
Yes. That is exactly what the constitutional amendment process is for. Would you rather that Scalia or Sottomayor unilaterally amend the constitution by interpreting "yes" to mean "no", or would you prefer to live in a representative democracy?
The only alternative I could see would be to hold occasional constitutional conventions, but I recoil from that. Too much danger bundled with the opportunity.
A lexicographer is someone who is skilled at the practice of creating dictionaries. Language is far more than a compilation of the spelling and meaning of words. Language is also syntactical, cultural - and..... temporal. The mistake you make is in thinking that a Constitution must not be alive because it is subject to "popular whims". There is a middle ground. If what you say is true, then the Constitution would only be fit to be the governing document of a culture that stopped existing some 300 years ago. Thomas believes that we should actually,through the proper examination of the author's perceptions and state of mind, project ourselves back in time in order to divine the meaning and intent of a particular passage of the document.
It will be some time before a legal document is written where yes, in some future time, "means" no. Now I am aware that culturaly this can happen - in the 80's Bad meant good but surely you aren't refering to that sort of thing.
Rounding error. exaggeration does indeed have its consequences. Forgive me.
Not true at all. There is a constitutional mechanism, amendment, to change a constitution that is no longer working, or desirable.
No, your interpretation of what the document meant or means is dead.
The first part of the amendment provided a reason, and it is precisely there that the drift of language is at its most visible. Back then "well-regulated" meant "able to hit the target". Trouble is, more modern scholars with agendas have been advancing the idea that the preamble of the amendment is a condition, one that restricts the right to "well-regulated" i. e. official militia. Imo it's best to leave out the "justification" bit, as it only provides a fulcrum for the crowbar crew. cn
What is living then, according to your statement, is the interpretation. How is that any different really? We all operate under the believe that our understanding of the document is all that really matters. If that is the case, then it makes no difference if the document is alive or dead, it is the meaning we take away that has any relvence. There are examples of the document that provide for our changing morals and ethics. "cruel and unusual punishment" seems worded to accomodate an evolving society - now is that prase dead? As we look at it I begin to lose the concept of dead vs alive.
I agree with you on this one, Bear. If it within my power, I would simply strike the first clause and rewrite 2A to read as you posted earlier. What the "living constitutionalists" tried desperately to do was to get 2A to mean: "the citizen has NO right to keep and bear arms", and I am happy to say they failed.
There are no other examples of an "explaination" in the Constitution. If it is explainatory only, why here alone and not in some of the less self explainatory portions? What you are saying is that as our popular understanding of words change, the document grows more and more divorced from our current cultural reality. Some, like bill of attainder are all but lost on modern society. So maybe the document is dead.
But suppose that is exactly what they meant?