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Today is
Friday
November 21, 2008
02:32 AM

Three ways to see the US Constitution
When Tom, Ben, George and their friends sat down in Philadelphia to write a new set of rules for their new nation, there were three rules of law that had been well known for many centuries. The Founders knew that:
1) a matter decided has been decided, so leave it alone (Res Judicata);
2) matters of law get decided by reading what judges have most recently said about the subject (Stare Decisis); and
3) when judges read legal documents they are supposed to figure out what the writers of the documents had in mind when they wrote those words (Doctrine of Original Intent).
To say these men did not know the doctrines of legal interpretation would be to demean their intelligence.

If we want to understand how our Constitution has become distorted in today's world, how it has become a “living document,” we must be aware that the writers of the Constitution, knowing these doctrines of legal interpretation, did not choose to dictate within the Constitution what method should be used to interpret the document. Knowing that a judge could later distort the meaning of what they wrote, they nevertheless did not warn judges that they must use the Doctrine of Original Intent in making judgments.

Having ignored this foundational mandate, the Founders nullified Res Judicata as it could have applied to their writing. If the writing is fluid in its interpretation, how can a strict “leave it alone,” rule be applied?

Since then, judges have not been obligated to view the words of the US Constitution as Res Judicata. Instead the courts view the US Constitution as “Res Suggesticata," to coin an expression. Nevertheless, school children and the public are taught to believe the words of the Constitution mean what they say. As you think about this historic contradiction, regretting the fact that the Founders did not mandate a rule of interpretation is not enough. We must confront judges with what we have been taught. Tell them that common sense demands that the judge must read and apply the words-as-they-were-intended as final, considering the original meaning of those words without judicial precedence to mean what they say, and to apply them that way case by case.

For those who want to study more deeply into the three doctrines of interpretation, here is how Wikipedia defines them:

Res judicata(from "res iudicata", Latin for "a matter [already] judged") is a common law doctrine meant to bar relitigation of cases between the same parties in court. Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply res judicata to preserve the effect of the first judgment. This is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents them from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury.

Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently - and usually spuriously - used as a synonym for Originalism generally [1]; while Original intent is indeed one theory in the Originalist family, it has some extremely salient differences which has led Originalists from more predominant schools of thought such as Original meaning to castigate original intent as much as legal realists do.

Stare decisis (Latin: ['stare? 'dekisis], Anglicisation: ['sta??i d?'sa?s?s], "to stand by things decided") (more fully, "stare decisis et non quieta movere") is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. This doctrine is not held within most civil law jurisdictions as it is argued that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should rule in a predictable and non-chaotic manner. Therefore, judges' right to interpret law does not preclude the adoption of a small number of selected binding case laws.

-- Richard Palmquist
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