Justice Scalia and Originalism in Constitutional Interpretation

@Thomas,

Thomas wrote:

Your wish is my command. Scalia makes clear his distinction between original-intent jurisprudence and his own approach, which he dubs textualism, in his 1996 speech to the Catholic University of America in Washington, DC.

Scalia calling himself a "textualist" is rather like liberals calling themselves "progressives." No substantive differences, just a more palatable description. Or, to put it another way, new labels on old whines. I still don't see any real distinction between an "original meaning" interpretation of the constitution and an "original intent" interpretation, but if Scalia wants to call himself an "originalist" rather than someone who believes in "original intent," I'll play along.

Thomas wrote:

To be fair, Scalia descends into hypocrisy as he discusses women's rights just a few paragraphs later. But that's not my concern here.

Well, it's not just run-of-the-mill hypocrisy, it's a full exposition of his jurisprudential philosophy. And I'd say it looks like original intent, it walks like original intent, and it quacks like original intent.

Thomas wrote:

My only concern is that the above quote summarizes the approach that Scalia aspires to take, whether he actually takes it or not. Earlier, in his dissent on Edwards v. Aguillard (1986), he went even farther and openly mocked his brethren for trying to discern the intent of legislators.

I've actually commented favorably on Scalia's views regarding legislative intent. I think he has a valid point. I just don't see him applying that same approach in a consistent manner toward constitutional interpretation.

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@OmSigDAVID,

OmSigDAVID wrote:

Like, for instance: the 9th & 1Oth ??????

I'm from Missouri. Show me a founding-era authority that claimed the 9th and 10th amendments abolished any of the taxing and spending powers in the general-welfare clause.

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@farmerman,

farmerman wrote:

so Fed papaers are kinda like buying clothes for an unborn baby

R thay like fungible, in size ?

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@Thomas,

OmSigDAVID wrote:

Like, for instance: the 9th & 1Oth ??????

Thomas wrote:

I'm from Missouri. Show me a founding-era authority
that claimed the 9th and 10th amendments abolished
any of the taxing and spending powers in the general-welfare clause.

I don t believe that the issue ever came up.
The 1Oth Amendment is pretty clear, on its face.

From this post, I see that u r referring to the 2nd general welfare clause.
Most of the time, people refer to the one in the Preamble.
At first, I thawt u meant that one.

At present, I am not aware of the Founding authority that u seek,
but facially, textually, whatever freedom is defended in the Bill of Rights
amends anything earlier that is inconsistent therewith.

David

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@joefromchicago,

Thomas wrote:

Your wish is my command. Scalia makes clear his distinction between original-intent jurisprudence and his own approach, which he dubs textualism, in his 1996 speech to the Catholic University of America in Washington, DC.

joefromchicago wrote:

Scalia calling himself a "textualist" is rather like liberals calling themselves "progressives."

During the Weimar Republic in the 1920s n first of the 30s,
thay were PROGRESSING thru time getting ever closer, closer and progressively closer to a nightmare.

The concept of "progress" is meaningless without knowing TOWARD WHAT!

David

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@joefromchicago,

joefromchicago wrote:

I've actually commented favorably on Scalia's views regarding legislative intent. I think he has a valid point. I just don't see him applying that same approach in a consistent manner toward constitutional interpretation.

This probably gets to the core of our differences about the nature of Scalia's approach. I think Scalia's principle of textualism is a good one, which he then ruins with hypocrisy. You appear to think that hypocrisy is the principle of Scalia's jurisprudence, or something like that.

In my opinion, the women's-rights history offers a good example for a possible distinction between textualism and original intent. For what little I know about the legislative history of the 14th Amendment it probably wasn't the framers' intent to give women the vote. But equal-protection clause's text makes it palpably obvious that it did give women the right to vote and to practice law. There's no question that American women were citizens by virtue of being born or naturalized in the United States. There's no question that states denied them equal protection of the law by withholding those rights from them.

Contrary to Scalia's smoke screen about how "the suffragettes just didn't think that way", they did think this way. It was the very first argument they tried in court. And on a strictly textualist interpretation, they should have won, even in1872. Their cases shouldn't even have been close. The judges who threw out their cases may have been originalists, but they were definitely no textualists.

1 Reply

@Setanta,

Setanta wrote:

The second amendment protects the right to keep and bear arms, but it doesn't require Congress to provide the arms.

True. But in a situation where the government did not provide those arms, militiamen would have the right to buy them themselves.

So if the National Guard were the militia, and the federal government declined to provide them with machineguns, grenade launchers, grenades, and bazookas, guardsmen would have the right to buy their own (and still to keep them at home).

But the federal government is not declining to provide them these weapons, so that is currently not an issue.

Setanta wrote:

So what if members of the National Guard can't take grenades home?

Militiamen have the right to take their arms home with them.

Note: keep and bear arms, not just bear arms.

Setanta wrote:

The second amendment does not require the government to arm the militia. Article One, Section Eight gives the Congress the power to provide for arming the militia, it does not require them to do so. In fact, the evidence i have seen is that the government produced over 800,000 stand of muskets and rifled muskets before 1861--but they didn't just hand them out, they reposed them in armories across the country.

That did not prevent militiamen from buying their own however. Nor did it prevent militiamen from keeping them at home after they bought them.

I will concede that if the National Guard were the militia, and the law allowed guardsmen to freely buy their own machineguns, grenade launchers, grenades, and bazookas and keep them at home, the government would not have to let government-provided weapons leave the base.

Setanta wrote:

While it is true that on several occasions, state militias have refused to serve outside their state boundaries (and have done so selectively, not as a principle), that is not evidence of any constitutional principle.

My pointing out the behavior of those states was not to prove a principle that is already proven. It was to counter your incorrect claim that no one raised such an objection during the War of 1812.

Setanta wrote:

As with that nonsense about taking weapons home, if you had a case, you'd have judicial precedents to cite. So long as you do not do so, i have no reason to take your claims seriously.

I figured the text of the Second Amendment was well-enough known that no cite was necessary.

But here you go. I will bold the word "keep" so that it will be harder to overlook:

Quote:

Article the fourth . . . A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

http://myloc.gov/Exhibitions/CreatingtheUS/interactives/bill_of_rights/HTML/beararms/index.html

1 Reply

@Setanta,

Setanta wrote:

there is still the matter of the provision for an unorganized militia in the Dick Act.

The "unorganized militia" is neither provided military weapons by the government nor allowed to buy their own military weapons.

They also are not organized into any fighting force the way the Framers intended the militia to be.

They are even further from the militia of the Constitution than the National Guard is.

The National Guard could actually be made into a legitimate militia with a few minor changes (ending overseas deployment, severing them from the Army, and letting guardsmen take their weapons home with them).

The "unorganized militia" would require many major changes before they passed for the militia of the Constitution.

1 Reply

@joefromchicago,

joefromchicago wrote:

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 Framers did not intend that the militia be armed with obsolete weapons. They intended that the militia be equipped with up-to-date weapons that would allow them to be a competent fighting force.

1 Reply

@Thomas,

joefromchicago wrote:

I've actually commented favorably on Scalia's views regarding legislative intent. I think he has a valid point. I just don't see him applying that same approach in a consistent manner toward constitutional interpretation.

Thomas wrote:

This probably gets to the core of our differences about the nature of Scalia's approach. I think Scalia's principle of textualism is a good one, which he then ruins with hypocrisy. You appear to think that hypocrisy is the principle of Scalia's jurisprudence, or something like that.

In my opinion, the women's-rights history offers a good example for a possible distinction between textualism and original intent. For what little I know about the legislative history of the 14th Amendment it probably wasn't the framers' intent to give women the vote. But equal-protection clause's text makes it palpably obvious that it did give women the right to vote and to practice law. There's no question that American women were citizens by virtue of being born or naturalized in the United States. There's no question that states denied them equal protection of the law by withholding those rights from them.

Contrary to Scalia's smoke screen about how "the suffragettes just didn't think that way", they did think this way. It was the very first argument they tried in court. And on a strictly textualist interpretation, they should have won, even in1872. Their cases shouldn't even have been close. The judges who threw out their cases may have been originalists, but they were definitely no textualists.

Your historical argument is quite compelling; good analysis. Long have I admired your mind,
tho not your ideological conclusions. U 'd have been a talented, skillful lawyer.
It is very pleasing to behold brilliance, wherever we find it.
U shud include children within your argument, too.
Citizenship is from birth.

David

0 Replies

@oralloy,

joefromchicago wrote:

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.

oralloy wrote:

The Framers did not intend that the militia be armed with obsolete weapons.
They intended that the militia be equipped with up-to-date weapons
that would allow them to be a competent fighting force.

Yes, indeed. Thay knew that the militia might need to overthrow the government AGAIN,
as thay had just finished actually DOING. Presumably, that woud be done by well-regulated militia,
rather than by the government militia of Article I Section 8.

HELLER recognizes that the First Amendment protects modern means of communications.
It was foreseeable to the Founders that technology woud improve.

David

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@oralloy,

Your quibble about what Guardsmen may keep is just that--a quibble. As i've already pointed out, in the period before 1861, the Federal government, at its own expense, caused more than 800,000 stand of muskets and rifled-muskets to be manufactured. They didn't hand those out to the militia, they kept them in armories spread across the states. The machine guns, grenades, grenade launchers, etc., necessary to the arming of the National Guard are also kept in armories, under contol of the respective states. As you acknowledge yourself, Congress is not obliged to provide weapons for people to take home. That you have a problem with gun control legislation by the Federal government is not evidence that there is no miliita--which is my argument with you, in case you've forgotten and are simply bent on ranting about gun control.

You have failed to make your case.

1 Reply

@oralloy,

This is more nonsense. There is no definition of the militia in the constitution, as i've alreay pointed out, Article One, Section Eight assumes that a militia already exists. Once again, you have no case.

1 Reply

@Setanta,

Setanta wrote:

Your quibble about what Guardsmen may keep is just that--a quibble.

My comment was about militiamen, not about guardsmen. It would only apply to guardsmen if they were actually a militia for Constitutional purposes.

Violations of the Constitution are never mere quibbles.

Setanta wrote:

As i've already pointed out, in the period before 1861, the Federal government, at its own expense, caused more than 800,000 stand of muskets and rifled-muskets to be manufactured. They didn't hand those out to the militia, they kept them in armories spread across the states.

That did not prevent militiamen from buying their own however. Nor did it prevent militiamen from keeping them at home after they bought them.

As of today, National Guardsmen are not given the right to purchase their own machineguns, grenade launchers, grenades and bazookas, and take them home.

Setanta wrote:

The machine guns, grenades, grenade launchers, etc., necessary to the arming of the National Guard are also kept in armories, under contol of the respective states. As you acknowledge yourself, Congress is not obliged to provide weapons for people to take home.

You left out the caveat that this would only pass muster if militiamen were able to purchase their own copies of those weapons to take home.

As of today, National Guardsmen are not given the right to purchase their own machineguns, grenade launchers, grenades and bazookas, and take them home.

Setanta wrote:

That you have a problem with gun control legislation by the Federal government is not evidence that there is no miliita

However, the absence of any militia is evidence that there is no militia.

1 Reply

@Setanta,

Setanta wrote:

This is more nonsense. There is no definition of the militia in the constitution,

There is no question from the writings of the Framers that they intended the militia to be an organized and active fighting force.

Setanta wrote:

Article One, Section Eight assumes that a militia already exists.

That is a bad assumption, given the fact that it no longer exists.

Some of the Framers feared the feds would neglect to have a militia, which is why the first half of the Second Amendment demands that there be such a militia.

Thus my lament that the first half of the Second Amendment is being violated.

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I don't think that searching out the intent of the framers or the members of the First Congress (responsible for amendments one through ten and twenty-seven) need be so painfully recherché, nor to look for them in dictionaries and encyclopedias. From 1642 to 1650, Parliament fought three bloody civil wars which were in large measure conditioned (originally) by religious strife, and the abuse of power by the executive (King Charles). Many of the powers of and restrictions on government can be directly traced to the controversies of that era, well known to all of the framers an members of the First Congress.

They can especially be seen in the first ten amendments. The no establishment clause and the free exercise clause are rather obvious. Freedom of speech and the press are very likely responses to the strict censorship imposed first by Cromwell during the protectorate, and then after 1660 in the government of Charles II. The right of the people peaceably to assemble an petition the government for a redress of greivances is obviously a direct response to the Riot Act an its abuse.

George III came to the throne at the end of the French and Indian War in North America--the Seven Years war dragged on for three more years. George had not been expected to take the throne until his elder brother died several years earlier, at which time a tutor was found for him and that man, Lord Bute, introduced him into society, such as it was, mostly to military men. With the end of the war in North America, an eventually the war in Europe, many military men were unemployed. The first government of George III was formed by Lord Bute, although it didn't last long--he was sufficiently odious that even the English couldn't put up with him. Lord North was little better, but he mostly offended the Americans.

Troops were sent to North America who weren't needed given that the French no longer threatened. One can say the were useful because they fought Pontiac's War, but that lead to one of the first causes of strife between the Americans and royal government--the quartering of troops under the quartering act. Troops returning from Pontiac's War were quartered in New York. The quartering of troops is mentioned as a mark against George III in the Declaration of Independence and is the subject of the third amendment. I think neither Bute nor George III gave any thought to the likely consequences of finding employment for their military friends in North America.

There was a new Sugar Act, as well. Although it actually reduced the tariff on molasses, Royal Navy vessels were sent out to enforce it with a rigor theretofore unknown (once again, this provided employment for young officers who otherwise would have been on the beach on half pay). More odious still to the colonists was that the jurisdiction of smuggling cases was remove from colonial courts and given to Admiralty courts. There was no right of habeas corpus recognized by Admiralty courts, and an accused could be made to testify, even if his testimony might incriminate him, and refusal to testify was considered prima facie evidence of guilt.

After Parliament reluctantly felt obliged to repeal the Stamp Act, they passed the Declaratory Act, which gave them the power to legislation on any matter concerning the colonies, and in any manner they pleased. The specific enumeration of powers, and what is prohibited to government in our constitution can be seen at least as an indirect reaction (i think it was a direct reaction) to the Declaratory Act. England had spent millions keeping Brunswick and Prussia in the Seven Years War, and they could hardly find the money in England with property taxes and excises, given that the Parliament was filled with the members of or the placemen of the mercantile and the landed property classes--so they thought they'd just get it from the Americans. To this day, English historians, and far too many American historians claim that Parliament was just reasonably expecting the colonies to pay their share for the protection they enjoyed during the French and Indian War. I won't go into the details here, but the colonies had already paid their fair share and more, especially when one considers that driving the French from Canada benefited England, but only indirectly benefited the colonies. In fact, before the French and Indian War, the colonies borne almost the total cost of the wars with the French--King Williams War (roughly, the Nine Years War), Queen Anne's War (the War of the Spanish Succession) and King George's War (the War of the Austrian Succession).

I don't think it's all that hard to see where so much of the constitution and the bill of rights derive. I also doubt that the framers and members of the First Congress ever dreamed that anyone would not understand what they meant with the language they used.

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@oralloy,

oralloy wrote:

My comment was about militiamen, not about guardsmen.
It would only apply to guardsmen if they were actually a militia for Constitutional purposes.

Will u reveal the better points and the greatest value of having extant militia,
either as per Article I Section 8, or as per the 2nd Amendment??

What most specifically commends itself to your attention, Oralloy ?

David

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@Thomas,

Thomas wrote:

I'm from Missouri.

By way of Bavaria, "der Schau mir Staat."

1 Reply

@joefromchicago,

joefromchicago wrote:

Scalia calling himself a "textualist" is rather like liberals calling themselves "progressives." No substantive differences, just a more palatable description.
.................................

Isn't it true though that he's supposed to be a master of legal textual exegesis? Surely that can't be used in a pejorative sense like "liberal"? I remember this same characteristic was also said to apply to Judge Bork (a conservative darling to this day, as you know).

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I remember Scalia justifying the use of torture as an interrogation technique because, seriously, it worked for Jack Bauer, the fictional "hero" of the purely fictional TV show "24". I'm not sure that's what textual exegesis is all about.

1 Reply

Justice Scalia and Originalism in Constitutional Interpretation

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