Among other things, this “consensualist” approach to constitutional theory implies that we should:
- Interpret the Constitution according to its plain, present, public meaning;
- Construct the Constitution as we would a standard form agreement, thus favoring individual rights over federal powers; and
- Decide cases involving Constitutional rights by Citizen Courts structured akin to the panels that help to guarantee the fairness of commercial arbitration procedures.
For an earlier but more detailed account of my views, see this post about my presentation at the 2010 Students for Liberty Southern California Regional Conference.
4 comments:
I have an ignorant question. If I'm understanding you correctly, common law interprets contracts according to what they would have meant if they were written today, rather than according to what they meant when they were written? That seems slightly bizarre. Is the assumption that the parties to the contract would have updated it if its plain meaning started to drift from what they actually meant?
I second Ran's question.
This makes no sense. Why would anyone want to live under such a fluid - read, capricious - code of law? Better to abolish and rewrite than to reinterprete according to the latest fad in politics
Ran and Glen: You're confusing "written" with "adopted." Granted, in most cases, the parties who write a contract also adopt it, so the distinction is not clear. But where two parties accede to a contract written by parties long dead, we face the problem--the problem presented by the Constitution--of whose meaning should control.
LMS: I don't think you watched or, if you did watch, understood, the presentation, as in it I address the (almost entirely) non-problem of changing meaning.
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