Wednesday, November 02, 2005

There's Nothing Original About Original Intent.

Consider the following. You just came up with the next great widget. Everybody's going to want one--but you can't cover the production costs. So you recruit two venture capitalists and they like your idea. The prototype is impressive and you've got a deal. You shake hands, then stop by the lawyers' office and draw up some forms. Sign and date in the presence of a notary. Deposit the check, and you're in business. Two years pass. A competitor uses reverse engineering to copy your widget, changing it just enough to escape a patent suit. You made a few mistakes and now the money's all gone and you can only sell your stock at a loss. Suddenly you find yourself in court, facing off against your former partners. At issue are the terms of the writing. Forget the oral agreement and handshake.

When you get to court, will you be bound by the original intent of the parties (as revealed by the terms of the writing)? Or will the parties get up and describe the writing as a living document, with terms that are open to adaptation as circumstances or parties change? How would a judge respond to such an argument?

Lawyer: Your honor, the plaintiffs would construe this writing as a "living document," and as such, the terms are fluid. The terms are adaptable, malleable, mutable.

Court: Then why bother writing them down?

Lawyer: Well, your honor, this is the customary way of doing business, the expectation of the parties....

Court: So the parties expect to sign a written contract, but not to be bound by its terms? They plan to exchange promises but keep all the terms fuzzy? Doesn't that defeat the purpose of a writing? Fuzzy deals are for handshakes, counselor, for standing arrangements and oral understandings. The only reason anyone ever reduces an agreement to writing is in order to be bound by that writing. If the writing is a "living document" then what possible advantage was there in drafting it?
I would have to answer that I have no idea. The hard fact is, fuzzy (but 'original') terms like living document are only in vogue today because so much fuzzy thinking passes for sound reasoning. I can tolerate a great deal of existentialism and relativism. Probably too much. I can accept the idea that I will never on this Earth be able to fully share another man's shoes. A Venn diagram of our minds and experiences will never completely overlap. There may be ways in which I will never fully know even my most intimate allies.

But we speak the same language. I understand most of what is said to me in English. We can communicate. And we can come to terms. And if I promise to provide x number of products on y date, in exchange for your payment of z dollars, we have a deal. And if we take the time to write it, review it, and sign it, every court in this country will assume both parties understood it, absent some claim a party lacked capacity to enter a contract in the first place.

In addition, most literate Americans understand the written English of the late 18th century. We can read the Constitution and other founding documents and know exactly what the words mean. Originalism is the way documents have always been read. After all, how else can you understand any written word, but to attempt to read it with the tone and meaning with which it was written. The beauty of originalism is that it is completely un-original.

And if you are a hopeless existentialist, do you actually believe it is impossible to know any writer's intent at any time? Do you think the pursuit of original intent is somehow an objectionable call for speculation? Fine. Although we can make a sound argument, we need not prove the actual inner motives of any of the framers of the Constitution. Maybe it was all some sort of conspiracy, right? There's a fresh, post-modern approach.

But we can certainly require the document to be applied in a manner consistent with the original understandingof those who read and ratified it. All that requires is a reading of the legislative history, especially the wealth of letters sent throughout the 13 states explaining in detail the meaning of each article in the Constitution. Such legislative history is plentiful and it is consistent. The Constitution should be read today to have the same meaning it had in 1789. Supreme Court opinions consistent with such a reading, or inconsistent but so deeply entrenched as to have now become essential (absent an amendment) due to stare decisis, should be given the greatest precedential value. Opinions that are neither consistent with an original understanding of the Constitution, nor deeply entrenched, should be set aside or overruled. (FYI: Lest you think legislative history is a weak argument, note that lawyers make resort to legislative history every day for cases involving everything from zoning ordinances to the income tax.)

Again, I can't help but think in personal terms. What if your boss said your employment contract was a living document? Or your rich wife informed you she now saw that prenup as adaptable? Or the surgeon who injured your child argued the informed consent papers you signed now included the injury in question, because the document changed with the times?

Such arguments would be ludicrous. People do not operate this way, they don't do business this way. Scholars don't even read history this way. And those who ask courts to read the Constitution as an allegedly "living document" that changes with the times do so for only one reason: they do not believe American law would have gotten where it is today without such readings, and they are certain it will not progress further if the Court looks to anything like an original understanding. Both views are wrong and I will explain why another time.

Finally, a quote. One of the Huxley's once said he and others like him had become proponents of evolutionary theory for only one reason: it allowed them the freedom to behave any way they liked. Perhaps the same is true of those who talk about "living documents."

9 Comments:

Blogger Steven Wales said...

Sorry I could not find the Huxley quote. No success with the internet and it is just too late to go through the books....

1:25 AM  
Blogger J Holden said...

excellent analogy nonetheless

1:29 PM  
Blogger dennis said...

It is a very difficult thing to become a "living" document. Even the Bible, which states that it is "living and active," becomes even more difficult to interpret uniformly because of that very nature. How difficult it is can be demonstrated by the various differences in practices of various denominations of christiantity, all of which hold up the Bible as the standard and yet have these different opinions about how a passage might be interpreted. It is good to know that we don't have a man-made supreme authority that mandates those interpretations anymore- that is in fact one of the main reasons that this nation was settled by people who felt that they were not able to worship according to the way that they interpreted the Bible and were in fact being persecuted for those beliefs and practices.

The Constitution is not the same, however. It does not claim to be divine, nor does it anywhere state that it is "living" or "adaptable." Perhaps the deconstructionists should push for an amendment, however ironic it might seem, that would allow for the society to change the manner in which the Document is interpreted, so as to "broaden our freedoms," as one congressman stated a few weeks ago in opposition to Ms. Miers' nomination.

Is it just me, or do people who have grown up with a strong education in Judiasm and/or Christianity seem to follow this line of thinking more readily than those who have not? It would seem to follow, as those who wrote the Documents were so involved themselves in study and even preaching of the Bible.

3:15 PM  
Blogger e said...

well done...at least i think well done...dennis...i was thinking along those same lines as i read this post...only one living document that i know of..and it is the most controversial collection of writing the world has ever known...if a piece of writing that is (at least in my opinion) God-breathed and infallable (one l or 2?) can cause such an uproar...do we think that a document written by men 200 yrs ago will be any different...i would expect nothing less than this...

i'm aware that i try to change the holy bible to fit my fancy...would i not try this with a document that has much less power?...i'm not proud that i do this so often...it is human of me to be selfish (i.e. my great need for mercy and forgiveness)...so the bible didn't need a bill of rights...luckily the constitution did...amendments...right? isn't this the whole point of the doctrine of natural rights? so that when we see as a society that things aren't exactly right...we can make changes...but only through a predetermined process (i.e. the law makin' branch of govt') could this ever keep people (who are naturally selfish) from running each other over..i don't know...steven wales...you seem right on...again. thanks...i jones after these posts (and that my friends...is an example of simple present...)

7:35 PM  
Blogger Steven Wales said...

Dennis, I think you're right that those raised in a Judeo-Christian tradition are more likely to read the Constitution in a traditional fashion. I don't know if it's the attention to documents though. I think it's just as likely to be a simple belief in a few absolutes.

As for the rest of it, y'all are going to force this English teacher to take a grammar class or something. I'm not kidding. I read Strunk and White regularly, but arcane talk about such things as case and tense are pretty unusual for me.....

10:52 PM  
Blogger e said...

i like english. my mother and my best friend are both english teachers. i also hate english. too, many rules...this isn't totally non sequitur though...i feel about english the way i feel about america...more freedom than most (seriously the british and the french have royal academies that decide what the english and french can say...whatever!) but not as much freedom as i want...maybe dennis will be inspired to write a poem about it...i would like that.

8:00 AM  
Anonymous Mom said...

Alls I know is you are a definite original one-of-a-kind unique and unlike any other creation ever to walk this earth.
Mom

5:01 PM  
Anonymous Mom said...

You don't need the quote. Millions demonstrate this every day, choosing to believe in a wacko theory to avoid accountability.
But believing the building isn't on fire when it is can get you just as burned.
Mom

5:04 PM  
Blogger Steven Wales said...

Tis true. Tis pity. And pity 'tis, tis true, but no matter....

This is Peggy Bain's favorite line from Hamlet.

--(just kidding - but it is Hamlet).

10:08 PM  

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