Justice Scalia and Originalism in Constitutional Interpretation

@OmSigDAVID,

Uh-huh . . . got a citation for that?

@Setanta,

Yeah, like I don 't remember the name,
just the cite.

I wonder whether that mighta been the Perpich case or not ?

Its been a few decades since I read it.

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Well, if you were to provide a citation which unambiguously shows that the Supremes don't consider the National Guard to be the militia, there is still the matter of the provision for an unorganized militia in the Dick Act. Oralloy has stated that there is no militia, and i don't see that he has made his case. He certainly has nothing to offer other than his polemic.

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@Thomas,

Thomas wrote:

So your point is that Scalia doesn't consistently practice what he preaches. That's fair. My counterpoint is that this doesn't affect the validity of what he preaches.

Well, I also don't think that "originalism" can't be consistently applied, but you're right, that wasn't my point.

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@OmSigDAVID,

OmSigDAVID wrote:

Yeah, like I don 't remember the name,
just the cite.

Perhaps you want to look up this decision. For what it's worth, I tried a Google search for ' "Supreme Court" "National Guard" militia ', and found no such decision. Based on past experience, I'm pretty sure it would have turned up the decision if it existed. So maybe you remember a dissenting opinion. Or maybe you remember a throwaway remark in an opinion that was immaterial to deciding the case and hence not legally binding. Or maybe you remember a comment on an opinion. The possibilities of fooling ourselves are endless, especially around memories that support our ideology.

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@joefromchicago,

joefromchicago wrote:

Well, I also don't think that "originalism" can't be consistently applied

Well, conservative commentators in the media are certainly doing their best to prove you right. My favorite pet peeve about them involves the General Welfare Clause. Many journalistic originalists completely ignore Alexander Hamilton's interpretation, pretend there's only Madison's, and thereby "prove" that the Supreme Court is out of control in recognizing taxing and spending powers beyond funding the powers elsewhere enumerated. Those are always funny. I expect to see a lot more of them later this year, when Santorum battles it out with Obama over the Affordable Health Care Act.

That aside, why can't it be consistently applied?

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@Thomas,

Quote:

. . . especially around memories that support our ideology.

Here, let's repeat that.

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@Thomas,

Thomas wrote:

That aside, why can't it be consistently applied?

First of all, in many instances nobody really knows what the intent of the drafters was. For instance, I think it's safe to say that, when the drafters said a president must be thirty-five years old, they meant that a president must actually attain the age of thirty-five. Those ones are easy. But we still aren't entirely sure what they meant by terms like "commerce" and "due process." That's because, although there are certainly clear cases of things that are "commerce" and things that aren't, there will always be something straddling the line that the framers simply did not anticipate. Is the trade in human organs "commerce?" Is baseball "commerce?" James Madison left us no clues.

Furthermore, because the constitution and its amendments were produced by groups, rather than individuals, it's impossible in most cases to discern a collective intent. Many of the legislative drafters of the fourteenth amendment, for example, were sure that they were drafting an amendment that would reverse the supreme court's decision in Barron v. Baltimore, which limited the reach of the bill of rights to congressional acts. The supreme court, in the Slaughterhouse Cases, quickly disabused them of that notion -- and that's despite the fact that the justices could have consulted most of the drafters of the amendment, who were still alive and working in the same building as the court.

For those of us in the 21st century, we don't even have that luxury (the last amendment to the constitution that was drafted in the twentieth century was adopted in 1971 -- only a handful of members of that congress are still around). All we have are the words of the constitution, which is the closest we can come to the intent. But then the drafters also intended the constitution to be interpreted (which is why they drafted a constitution rather than a series of statutes). So any interpretation that discounts interpretation in favor of original intent ignores the original intent.

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@joefromchicago,

joefromchicago wrote:

Many of the legislative drafters of the fourteenth amendment, for example, were sure that they were drafting an amendment that would reverse the supreme court's decision in Barron v. Baltimore, which limited the reach of the bill of rights to congressional acts. The supreme court, in the Slaughterhouse Cases, quickly disabused them of that notion -- and that's despite the fact that the justices could have consulted most of the drafters of the amendment, who were still alive and working in the same building as the court.

The fourteenth amendment is an interesting example. Justice Scalia once claimed that the fourteenth amendment was not intended to prohibit gender discrimination.

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@joefromchicago,

Quote:

So any interpretation that discounts interpretation in favor of original intent ignores the original intent.

Wait a minute . . . are you some kind of commie ? ! ? ! ?

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@wandeljw,

wandeljw wrote:

Justice Scalia once claimed that the fourteenth amendment was not intended to prohibit gender discrimination.

And he's right. It's just that the framers didn't write the amendment that way. If we go by their intent, then the fourteenth amendment would only apply to freed slaves, just as the second amendment would only apply to single-shot muzzle-loading firearms.

The drafters of the fourteenth amendment also didn't intend to enshrine the "one-person, one-vote" rule into the constitution (that's an interpretation from the Warren court), but Scalia and the majority in Bush v. Gore had no problem relying on that to invalidate the Florida recount.

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@joefromchicago,

joefromchicago wrote:

Thomas wrote:
That aside, why can't it be consistently applied?

First of all, in many instances nobody really knows what the intent of the drafters was.

Scalia---or rather, an idealized Scalia who practices what he preaches---doesn't care about the framers' intent. He only cares about their language, and what it meant to its contemporary readers. At least in theory, the meaning of the framer's words is much easier to know than their intent. Just consult period-area dictionaries and period-area rulebooks on statutory construction.

joefromchicago wrote:

Is the trade in human organs "commerce?" Is baseball "commerce?" James Madison left us no clues.

Why did he have to? After all, we can look up the word "commerce" in references like the First-Edition Encyclopedia Britannica (1765) or the first edition of Webster's Dictionary (1828). I'm picking out those two because they happen to sit on my bookshelf.

Britannica (1865) defines commerce as "an operation, by which the wealth, or work, either of individuals, or of societies, may be exchanged". Webster (1828) is a bit long-winded, but his first sentence captures the essence: Commerce is, "in a general sense, an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick."

Under both definitions, trade in kidneys is definitely commerce because kidneys have value, which people exchange for money. Under both definitions, the sale of baseball-game tickets is definitely commerce, and for the same reason: people exchange value for money. On the other hand, the mere playing of baseball may or may not be commerce. That depends on your willingness to accept justice Marshall's vague "intercourse" language in Gibbons v. Ogden (1824), which his fellow Federalist Daniel Webster (1828) then included in his first dictionary. But that is the only ambiguity I can see your examples raise. And I think this ambiguity stays within a practicable level of consistency. The examples you picked don't support the position you're arguing.

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@joefromchicago,

Would you, Thomas, anyone else interested, care to vote on the consistency test? It's only 3 questions answerable by yes or no. David and I have already voted with Y-Y-Y (either that or N-N-N meets consistency criterion) curious how anyone else would vote. Here is the test again - thanks:
http://able2know.org/topic/186103-2#post-4930152

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@High Seas,

High Seas wrote:

Y-Y-Y (either that or N-N-N meets consistency criterion)

Says who? And on what grounds?

But if it makes you happy, I would have concurred on Scott v. Sanford, dissented on Bush v. Gore, and dissented on Citizens United v. FEC. Each time, my conclusions would have emerged from arguments consistent with originalism. I reject your claim that my decisions would have been inconsistent by virtue of your capricious and arbitrary "test".

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@Thomas,

So you vote Y-N-N. Interesting. The criterion was simply suggested by a legal colleague - and btw Dred Scott v Sandford is the usual name for case #1.

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@Thomas,

Given that just about the only dictionary of the English language in use in the late 18th century was Johnson's dictionary, i find that proposition rather dubious. Webster found fault repreatedly with Johnson's dictionary, but Joseph Emerson Worcester praised Johnson and his dictionary, and used it as a model for his own dictionary.

Many of Johnson's detractors pointed to his lack of gravitas in his dictionary: "Excise: a hateful tax levied upon commodities and adjudged not by the common judges of property but wretches hired by those to whom excise is paid" and "Oats: a grain which in England is generally given to horses, but in Scotland supports the people", or, even more notorious: "Monsieur: a term of reproach for a Frenchman".

Whatever may be on Thomas' shelf, Johnson's dictionary was most likely to be on the shelves of the framers. I submit, however, that they had little reference to dictionaries or encyclopedias, more likely relying upon what they took to be their common understanding of the meanings of phrases and especially their understanding of the history of England, including its abuses. I would point out Blackstone's comments on bearing arms, and the commentaries of American scholars early in the 19th century to the effect that bearing arms meant to them participation in the militia, and to them, the right to bear arms meant the right to participate in the militia, without any of the social or economic restrictions that Blackstone referred to. William Blackstone, in his monumental work on the common law, wrote: "The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law." Early commentators in the United States pointed to this passage of Blackstone and stating that the second amendment intended to remove any restrictions based on condition or degree. This would not at all be sense of the clause in the view of modern pro-gun polemicists, who consider the phrase to mean a great many things, but not a reference to the social or economic status of the citizen.

I suggest we would find ourselves in a morass were we to adopt such a method.

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@Thomas,

Thomas wrote:

Scalia---or rather, an idealized Scalia who practices what he preaches---doesn't care about the intent of the drafters. He cares about the language they enacted, and what it meant to its contemporary readers. At least in theory, the meaning of the framer's words is much easier to know than their intent. Just consult period-area dictionaries and period-area rulebooks on statutory construction.

You ask me why "original intent" can't be consistently applied and then you quibble with my response because you think Scalia doesn't follow "original intent?" I don't feel obliged to answer questions that haven't been asked or reply to objections that might apply to some other question.

Thomas wrote:

The examples you picked don't support the position you're arguing.

Yes they do. I didn't say that the constitution's commerce clause can't be construed to apply to the trade in human organs or baseball, I said that Madison didn't give us any clues as to how the framers would have regarded those issues.

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@High Seas,

High Seas wrote:

Would you, Thomas, anyone else interested, care to vote on the consistency test? It's only 3 questions answerable by yes or no. David and I have already voted with Y-Y-Y (either that or N-N-N meets consistency criterion) curious how anyone else would vote. Here is the test again - thanks:
http://able2know.org/topic/186103-2#post-4930152

I have no idea what your friend's "test" is supposed to prove. Those cases were decided under entirely different provisions of the constitution, so I can't imagine what sort of "consistency" your friend is referring to, apart from the "hobgoblin of little minds" type of consistency that Emerson wrote about.

For your amusement, though, I would have issued a special concurrence in Dred Scott, I would have voted with the dissenters in Bush v. Gore, and I simply don't know enough about the facts or the law in Citizens United to offer an opinion.

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St. George Tucker (an early American constitutional and legal scholar) in his annotations of Blackstone for an edition published in the United States, writes in 1803:

"The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government" and "whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England."

Note his emphasis on "condition and degree," as well as the reference to the game laws.

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Justice Scalia and Originalism in Constitutional Interpretation

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