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Friday, September 25, 2015

Forget the Framers, it's the Ratifiers who count

I'm down with Madison re "originalism," or "original public meaning" or whatever you want to call it.  Forget the academic history lesson: Ethically it's not what the lawyers meant when they drew up the contract, it's what the parties thought they were agreeing to. This is why the Obergefell decision is a legal fiction at best, and a lie by any other measure: 

"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.  

However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."
--James Madison to Thomas Ritchie, 
15 Sept. 1821

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