the original meaning of the copyright clause could not have included:
movies
records
CDs
videos
webpages
TV
Radio
etc.
"Original meaning" is a something to understand, but one cannot be
bound by it in a meaningful way.
The world has changed. And the Constitution is a living one.
This is not to say that any number of times the Court has strayed
from the text of the Constitution. It has done so repeatedly with
some horrible results and some good results.
International law, at least in the forms of treaties and customary
law are within the contemplation of the Constitution.
Consistency at the edge cases and difficult cases tends to be hard
to come by -- the principles one chooses to base a decision on can
determine the outcome.
Constitutional law is simply not so simple.
Steve
On Jul 25, 2005, at 5:15 PM, Samuel V wrote:
Well necessary criteria would be that the decision (1) is based on the
language of the Constitution itself, and the original meaning of those
words, (2) does not rely on some extra-Constitutional basis, such as
modern social policy or foreign law, unless that policy or law is
incorporated by the Constitution, (3) is consistent, in that if it
treats cases differently, it does so in a way rooted in the
Constitution itself.
I personally think you could have decisions which are principled
according to these criteria coming down either way on the religion
clauses. When I think of decisions based on judicial fiat, I tend to
think more of other decisions.
Sam Ventola
Denver, Colorado
On 7/25/05, [EMAIL PROTECTED] <[EMAIL PROTECTED]> wrote:
In a message dated 7/25/2005 4:37:41 PM Eastern Standard Time,
[EMAIL PROTECTED] writes:
(Since this is a religion list, what exactly does it mean to
"enforce the
Constitution as written" when it comes to the religion clauses?)
A distinct but equally important question is this.
Suppose we know
what it means "to enforce the Constitution as written, rather than
impose
some other world view through judicial fiat" just how do we know
when a
judicial decision succeeds in achieving this? What features of
the opinion
or reasoning will be dispositive? Further, even if we were all
committed to
this imperative regarding the religion clauses, is there any
reasonable
chance that this will help us achieve consensus over their meaning?
Bobby
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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