2011/02/02

Original meaning not in much original practice

Persons who seek original meaning of laws such as the Constitution often confuse themselves by conflating original meaning of the language they chose with contemporary practices of the era. They are not the same. The meanings of the words could be, and often were, in substantial contradiction with prevailing practices of the time. The practices sometimes provide insight into the meaning only by providing contrast. It is a mistake to claim the Founders disagreed more about meaning or understanding than they did, based on inconsistencies between their words and their practices.

I consider such cases as Barron v. Baltimore and Dred Scott v. Sanford to have been wrongly decided, based on the original meaning of the words actually chosen in writing the Constitution. Not on the practices that prevailed at ratification, and which were temporized by avoiding confrontation with the words of the Constitution. Founding era practices are not dispositive of meaning or understanding. Sometimes they are indicative, sometimes not. They do indicate that the Framers sometimes adopted language that aspired to a better future when reality could be brought into compliance with their words. Barron and Dred Scott happened because the contradiction could no longer be sustained or avoided, so the Court copped out and went with original practice instead of actual language. It took a civil war and three amendments to fix those wrong decisions.

Consider a statute, such as the Health Care Act. When it is passed, does it merely describe what people are already doing? Of course not. There would be little need for a statute that changed nothing. Laws, including constitutions, are enacted to change what people do.

So what happens when it is enacted? Does everybody, citizens and officials alike, instantly snap to perfect compliance? Of course not. Probably very few of them do for a while. Maybe more and more as time unfolds. Maybe not, if there is resistance, or misunderstanding, or a lack of a budget for enforcement.

So what can we conclude if we look at what people are actually doing a few years, or perhaps a few decades, after the enactment, and compliance is far from perfect? In particular, what can we conclude about the meaning of the law? Not that it meant only what people were doing at enactment. Not that it meant what people were doing years later. So what if anything can be extracted from practice to reveal what the enactment meant?

The answer is that the enactors probably had in mind some ideal of practice that was rarely if every perfectly realized, although it might be closely approached in a few cases. They might hold up those cases as exemplars, and as such, indications of what was meant. But general practice was probably not what was meant.

In this sense, constitutions are just another kind of enactment. Aspirational, in large measure. For original meaning, one has to look to ideal descriptions, or exemplary cases, not to prevailing practice.

Now it may be argued that while that is certainly true in terms of popular acceptance, it is not true in terms of legal acceptance.

The answer is that of course it is. Officials are people, too, and even today they don't snap to compliance with new statutes or court rulings, either because they don't know, don't care, don't understand, don't expect to be caught, or are reliance interests that will cling to the previous regime until they are dragged into compliance. Compliance was even slower in earlier times, and often never occurred at all. In some alternate timeline law may be some kind of magic. It's not in this timeline.

1 comment:

Michael said...

"Practices" is a cypher of a word here, which you decline fill or place in context. What are you referring to? And how *does* (or did) this category of things you call "practices" relate, even in abstract categorical terms, to the words that were chosen for the Constitution?

Perhaps some real examples of people drawing the wrong conclusions about the implications of "practices" would illustrative of your meaning.

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