Monday, March 29, 2004

Yesterday I asked whether the appeal to intention in reading is always conservative. I didn't note that there's obviously a difference between a reading based on intention and a "literal" reading. In the case of the Chinese government's reading of Hong Kong's Basic Law, the appeal to intention is designed to "look beyond" the literal. In the case of "strict constructionist" interpretation of the U.S. Constitution, the appeal to the intentions of the founders is supposed to have quite the opposite effect: to support the Constitution's "literal" meaning. The larger point, though, is that inquiring into the authors' intentions is designed to restrict interpretation, to close these founding documents to expansive readings that might grant more, rather than fewer, civil rights and liberties.

Not being a legal scholar, I can't say that I understand why intentionalist readings of the Constitution have become associated with the right wing. The only amendment in the Bill of Rights on which liberals tend to appeal to intention is, of course, the Second, with heavy leaning on the phrase "a well-regulated militia" in order to demonstrate that the Founding Fathers didn't expect every citizen to be carrying a concealed semiautomatic pistol when they went to the store.

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