View single post by Joe Kelley
 Posted: Fri May 5th, 2017 06:54 pm
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Joe Kelley

 

Joined: Mon Nov 21st, 2005
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In the Language of Magna Carta is an important reference as to the process that was labelled "construction" during the American Revolution.

Example of Construction:
http://www.barefootsworld.net/antifederalist.html#afp80
The Power Of The Judiciary (Part 2)
From the 11th essay of "Brutus" taken from The New-York Journal, January 31, 1788

What latitude of construction this clause should receive, it is not easy to say. At first view, one would suppose, that it meant no more than this, that the courts under the general government should exercise, not only the powers of courts of law, but also that of courts of equity, in the manner in which those powers are usually exercised in the different states. But this cannot be the meaning, because the next clause authorises the courts to take cognizance of all cases in law and equity arising under the laws of the United States; this last article, I conceive, conveys as much power to the general judicial as any of the state courts possess.

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing. The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it. This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

lst. They are authorised to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law. These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the constitution as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so understood as to bear no meaning or a very absurd one.


This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.


An Essay on the Trial by Jury
Lysander Spooner
Language of Magna Carta

Coke’s rendering is, if possible, the most absurd and gratuitous of all. What is there in the words, “nec super eum mittemus,” that can be made to mean “nor shall he be condemned before any other commissioner or judge whatsoever?” Clearly there is nothing. The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of ajudicialpower, by the king, or his judges, which is nowhere given them.


The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of ajudicialpower, by the king, or his judges, which is nowhere given them.