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Re: The Sourceless software in the kernel source GR

On Tue, Sep 19, 2006 at 09:54:17AM +0200, Frank Küster wrote:
> > Umh, then I need to ask why the resolution is not clear enough
> > so that it does not need the preamble to know in which way the
> > author has intended its interpretation?  As Manoj pointed out
> > already, courts look at the resolution when *interpreting* it,
> > not at the preamble, so it seems pretty useles in that regard.
> As for german law, this is definitely wrong.  Courts primarily look at
> the text, but the public documents produced in parliament during the
> creation process do in fact count when in doubt.

Manoj is simply incorrect about this.  U.S. courts can and do consult the
Preamble to the U.S. Constitution, the Congressional Record, and other
sources when necessary to reach an intelligible ruling.  There are rules of
construction which are routinely and faithfully applied (at least
in the Indiana Court of Appeals, the Indiana Supreme Court, and the U.S.
Court of Appeals for the 7th Circuit, whose published opinions I read
regularly) -- but when statutory, contractual, or constitutional language
is ambiguous or unclear, judges can and do consult contextual information
as an aid to interpretation.

Nor is this merely a practice of "activist", "liberal" judges who will
grasp at anything they can find to bolster their nefarious
juris-imprudence.  Oh no.

No less a champion of so-called "originalism"[1] than Clarence Thomas[2]
resorted to citing the Preamble to the U.S. Constitution in his dissent[3]
to a recent -- and prominent -- case, Kelo v. New London, last year's
"eminent domain" case, infamous to many property owners in the United

  Tellingly, the phrase “public use” contrasts with the very different
  phrase “general Welfare” used elsewhere in the Constitution. See ibid.
  (“Congress shall have Power To … provide for the common Defence and
  general Welfare of the United States”); preamble (Constitution
  established “to promote the general Welfare”).

  Kelo v. City of New London, 545 U.S. 469 (2005), Thomas, J., dissenting[4]

This is just one example; in my lay opinion, Thomas's approach is not even
atypical in the American legal tradition, let alone unprecedented.  If
challenged, I will defer to the assessment of an appropriate authority[5].

Manoj, I am in fact sympathetic to your efforts to construct a ballot that
is less than a megabyte in size, and were I in your shoes I would also
attempt to construct a CFV that cuts to the chase -- but I find your
analogical reasoning in this case to be ill-informed.  It needlessly
detracts from the merit of your position.

I don't think it is too much to ask that the proposers and/or seconders of
General Resolutions create and maintain wiki pages, for example, when their
initiatives demand a lot of background material to appropriately inform and
persuade the electorate.  They can, of course, decline to do this if they
choose, and let the GR stand or fall on its own language for those voters
who are not congizant of the list discussions and any reportage that has

To demand that the Project Secretary represent the positions of multiple
factions when the issue being voted upon is highly charged, is to ask too
much of the office.  Those who would use the General Resolution procedure
to achieve their aims in this project must shoulder some responsibility

[1] http://en.wikipedia.org/wiki/Originalism
[2] http://en.wikipedia.org/wiki/Clarence_Thomas

[3] If my argument is undermined through reference to a dissent rather than
a majority opinion -- well, so much the worse for Justice Thomas and his
fellow "originalists".  :)

[4] I don't actually know how to cite by the Bluebook standard, so this
represents my best effort.  You can read Thomas's dissent here:


[5] Someone wanna set me up on a date with a constitutional law professor?

(And hot damn, signify(1) has exhibited AI again.  I promise that's really
the quote it picked on the first try.)

G. Branden Robinson                |     The Rehnquist Court has never
Debian GNU/Linux                   |     encountered a criminal statute it
branden@debian.org                 |     did not like.
http://people.debian.org/~branden/ |     -- John Dean

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