Wednesday, May 21, 2008

"The question before us is how we choose to define ourselves. The rules of conduct on the chessboard, the tennis court or the courtroom are a means to focus our attention. The game is always played by the living... Arguments either for or against a "dead hand," those of Libertarians or reactionary Catholics, miss the point."

Note taking, from my comments on Can Living Constitutionalism be Defended?
Has language ever been static?
Has there ever been a doctrine or document the meaning of which has remained unchanged over time?
Has the Bible ever been static? Has the Catholic Church ever been static. Can we hear and understand Mozart as he was in his lifetime? Bach? Shakespeare? The list goes on, and on, and on. The answer to all such examples is no. Run down every attempt in history to stop time, see what you end up with.
"Can Living Constitutionalism be Defended?"
Better, can the fact of it be denied?
It doesn't matter one way or the other what you want. First ask what is.
Can the meaning of a document become so twisted by rationalization that it becomes a parody of itself? Yes. Can debate become shallow? Yes. But the imposition of absolute meanings does not defend against intellectual sloppiness, it institutionalizes it.
This debate is stupid.
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"That's the fundamental dishonesty that lies behind living constitutionalism."

Living constitutionalism is the law of the land in Canada. But you're still talking about law, and I'm talking about language and one is a subcategory of the other. I'm tired of listening to people argue about the idea of law who have no understanding of nor interest in the facts of language.
If you want to argue that the constitution has been broken rather than stretched, go right ahead, but the general logic undergirding your argument as it stands is founded on a falsehood. Theology may have a long history of brilliant arguments based on mistranslations but the mistranslations are still there.
I'll put it another way with another text. Mozart wrote symphonies as notation and editorial comment on paper. Rules: "B flat" "A minor." Comments: "quietly" "slowly" "quickly" "quickly but not frenetically" "fast!" Even seeing notes mathematically people still argue over how to interpret what he wrote. Mathematicians may prize Bach but the same questions apply.

When does a performance of Mozart become something we no longer recognize as Mozart? That's something we fight over and always will. There is no Mozart without argument. There is no Platonic form of his music that we will ever know, just as there is no Platonic form of the constitution. Every argument on such issues is an argument over logic and sensibility, over rules and values. Values are politics, and the debate is a game, argued like two men playing chess or tennis. Chess and tennis have rules too, but rules of conduct, specifically ethical rather than moral ones [no rules pertaining to "truth": no one would argue over the Platonic nature of the rules for chess or basketball.]

The question before us is how we choose to define ourselves. The rules of conduct on the chessboard, the tennis court or the courtroom are a means to focus our attention. The game is always played by the living, in the present. Arguments either for or against a "dead hand," those of Libertarians or reactionary Catholics, miss the point.
The logic of rules and rule following is the same for athletic or intellectual competition: the foundations are man-made. The Constitution is not there [and was not made] as a rule for us to follow but as a means to test ourselves, to be engaged with one another and to define ourselves in the present. Passivity before the constitution is immoral.

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