Comment of the Day: “Mr. Madison, Meet Mr. Twain”

The Comment of the Day is from Tom Fuller, regarding “Mr. Madison, Meet Mr. Twain”:

“I deal extensively with treaties and other international agreements in my work.  These agreements are frequently amended by protocols.

“Since the original, signed-in-ink treaties and protocols are kept under lock and key at the State Department, I have to rely on commercial publishers for the texts.   (The government prints them too, but it usually takes them a while.)  These publishers are always careful to print the original treaty, as signed, and then each protocol, as signed.  They don’t (except in rare cases, and even then covered with warning bells) publish a “current” version of the treaty that “incorporates” the protocols.

“Why not?  Because they’re publishers, and they’re smart.  They are very, very good at reproducing a text they are given.  They have no expertise in deciding the exact legal effect that a subsequent protocol has on the original treaty.  So they print everything, as published, and leave it to experts to figure out what the amended treaty actually says.

“I think they are doing the right thing.  Amendments to the Constituition aren’t like taking off Mr. Potato Head’s ears and replacing them with his eyebrows.  Many of them (take, for example, the Bill of Rights) don’t “amend” anything.  They add things.  If the addition affects some earlier provision, that’ll get worked out eventually.  But trying to foresee all such effects in advance is an impossible task.

“The Constitution is the original text and the text of each Amendment.  You can rely on light blue lines and red crosses if you like.  If you do, you’re trusting that the anonymous editor — whoever decided where the lines and crosses go — managed to get it right.

“The danger of doing that is well illustrated by the January 6 arguments over what to read and what not to read.  Everybody wanted to decide personally where the X’s and lines should go.  But legislators have transitory political agendas, questionable grammatical and historical competence, and mind-sets that tend to discourage looking back at what other lawmakers did before them.  (Or, in some cases, what they themselves did, months or minutes ago.)  These people are singularly ill-equipped to decide matters that (according to the terms of the very document they are reading) they’re supposed to keep their hands off of anyhow.

“Read the original text.  Read the amendments.  Trust our children to understand how the tradition works, and to carry it on.  With any luck, they’ll do a better job of it than we are doing today.”

One thought on “Comment of the Day: “Mr. Madison, Meet Mr. Twain”

  1. Pingback: Comment of the Day: "Mr. Madison, Meet Mr. Twain" | Γονείς σε Δράση

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