A couple more posts before leaving home.
Alonso del Arte of the Daily Kos community talks about efficiency in 18th Century communication. He begins with figured bass, which was used in music at that time.
I taught some aspects of figured bass when I was a college level music theory instructor so I understand the extensive examples del Arte goes through. I’ll summarize it quickly to get on to his major point.
JS Bach, Antonio Vivaldi, and their colleagues, even somewhat into the time of Joseph Haydn and Wolfgang Mozart, wrote out a bass part intended to be played on two instruments. One was a typical bass instrument, such as cello, or bassoon. The other was a keyboard instrument such as a harpsichord or organ. So a “trio” – soprano, alto, and bass – actually needed four performers. This keyboard player didn’t just plunk out the bass line, he read the figures – numbers and other symbols written with the notes – to work out what harmony is to be played by the right hand. The composer wrote out only what was necessary to tell the performer what to play. The musical standards and tastes of the time also constrained what the keyboard player did.
Del Arte turns his attention to another document written during this time, the US Constitution. In the same way as composers of the era Jefferson or Madison put in the Constitution only as much as they thought they needed to get their point across. A lot of context was assumed to be understood by citizens (at least well educated citizens).
So a judge or justice who declares himself to be an “originalist” should be looking at phrases from the Constitution within the context of the society of the time. A couple examples:
“The executive power shall be vested in a President of the United States of America” says the Constitution. Which means the president has sole authority. Well, no. The guys who wrote the Constitution had just been dealing with a tyrannical King George III and wanted to make sure such abuse of power couldn’t happen here.
Then there is the Second Amendment, the one about the right to bear arms. The rifle of the 18th Century took a while to load and fire one bullet at a time. If you got hit by that bullet and didn’t die, you could be patched up with a few stitches and be on your way. But in the 21st Century we have assault rifles that, by holding down the trigger, will spray lots of bullets in a short amount of time. One doesn’t even need to aim carefully. These bullets cause a lot of damage. If you didn’t die you probably lost a limb. Jefferson and Madison didn’t know about assault rifles and their capability of mayhem. So, in this case does a text that makes sense in the 18th Century apply to the 21st?
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