Justice Scalia and Originalism in Constitutional Interpretation

Y-N-(n.a.)

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.

Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as State Guard members unless and until ordered to active federal duty and revert to state status upon being relieved from federal service. The authority to order the Guard to federal duty was limited to periods of national emergency until 1952, when Congress broadly authorized orders "to active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without the consent of the governor of the State concerned. After two State Governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the "Montgomery Amendment," which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty. The Governor of Minnesota and the State of Minnesota (hereinafter collectively referred to as the Governor) filed a complaint for injunctive relief, alleging, inter alia, that the Montgomery Amendment had prevented him from withholding his consent to a 1987 federal training mission in Central America for certain members of the State Guard, and that the Amendment violates the Militia Clauses of Article I, 8, of the Constitution, which authorize Congress to provide for (1) calling forth the militia to execute federal law, suppress insurrections, and repel invasions, and (2) organizing, arming, disciplining, and governing such part of the militia as may be employed in the federal service, reserving to the States the appointment of officers and the power to train the militia according to the discipline prescribed by Congress. The District Court rejected the Governor's challenge, holding that the Federal Guard was created pursuant to Congress' Article I, 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed. (emphasis added)

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.

wandeljw wrote:

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

And he's right.

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.

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.

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. . . .

Then I reverse my quibble and say you're erecting yet another straw man against Scalia. Because Scalia's version of originalism repudiates the search for intent in no uncertain terms, it is misleading to criticize him on the grounds that original intent is unworkable.

Thomas wrote:

Then I reverse my quibble and say you're erecting yet another straw man against Scalia. Because Scalia's version of originalism repudiates the search for intent in no uncertain terms, it is misleading to criticize him on the grounds that original intent is unworkable.

Here I'm going to have to ask you to cite some support, lest you erect your own strawman. Frankly, I don't think Scalia has ever taken the position that intent doesn't matter.

I belong to a school, a small but hardy school, called "textualists," or "originalists." That school used to be "constitutional orthodoxy" in the United States.

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated.

You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

Discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.

In the Federalist Papers, arguably the interpretation on which "we the people" decided to vote for or against the constitution, James Madison agreed with your view and Hamilton disagreed. Accordingly, when the 1936 Supreme Court adopted Hamilton's interpretation and rejected Hamilton's, it picked one of the original interpretations over another. It couldn't have betrayed the framers' original meaning if they wanted to: There was no one original meaning. There was disagreement about the meaning all the way back to the beginnings. Your boldfaced, capitalized, and colorful outburst about personal freedom cannot change the facts of constitutional history.

I think the overall tone of the Fed Papers was that WE DONT NEED A BILL OF RIGHTS? and it wasnt even proposed yet. so Fed papaers are kinda like buying clothes for an unborn baby

I think the overall tone of the Fed Papers was that WE DONT NEED A BILL OF RIGHTS? and it wasnt even proposed yet. so Fed papaers are kinda like buying clothes for an unborn baby

But it already did contain the general-welfare clause, which is the subject I talked about in this sub-thread. (Article 1, section 8, paragraph 1.)