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0 pointsrayiner7y ago0 comments

You're mixing up two different things: does the new thing fall within the old language, and would the drafters have used different language had they known about the new thing.

Is a semi-automatic rifle an "arm" as the term was understood in 1789? Yes, almost certainly, in the same way an aircraft carrier is a "ship" as the term was understood in 1789. If semi-automatic rifles had existed in 1789, would the framers still have used "arms" as they did? Maybe, maybe not, but that's irrelevant. We don't care about what they thought, just what they wrote.

Likewise, is a class action "concerted action" as the term was used in 1935? Probably not. Would the drafters of the NLRA have wanted class actions to be protected had those been common in 1935? Probably yes, but that's again irrelevant.

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aaronbrethorst7y ago

We don't care about what they thought, just what they wrote.

Uh, who's "we?" It sounds like you're describing textualism or strict constructionism, which are two of many types of judicial interpretation. https://en.wikipedia.org/wiki/Judicial_interpretation

true_religion7y ago

The we is the supreme court.

cookiecaper7y ago

True, but these theories have become popular in the US because within the parameters of the American republic, they're the theories that allow you to step back and say "OK, what did this law mean?". Other theories involve much more individual interpolation and personal judicial bias/opinion/whatever, which is what is usually meant when people say "legislating from the bench".

The people of the Great State of $YOUR_STATE are reading the bills as they're written and electing, instructing, and/or recalling their representatives according to the contemporary mainline meaning of the actual recorded text of the bill. The people of $YOUR_STATE don't know that $YOUR_SENATOR meant X when he said Y. Or even if they do, there's no way to know that the people of $BORDERING_STATE, who also supported the bill, had the same implicit caveat.

Thus, the only way to understand the meaning of laws enacted by "the People" is to interpret the recorded text as an average person contemporary to its passage would have understood it.

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