Justice Scalia's Unscrupulous Method Of Constitutional Interpretation

[Jagger]

In D. C. v. Heller, Scalia assumes, incorrectly I might add, that the text of the Second Amendment should be understood as "understood by the voters ." Then he immediately "rephrases" the Amendment, not according to how it was "understood by the voters", but according to how it was understood by Joel Tiffany.

In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.....

.....The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See §585,
p. 394 (1867) J. Tiffany, A Treatise on Government and
Constitutional Law

Joel Tiffany wasn't even a voter of the founding generation. However, he did reject Scalia's method of interpretation in favor of my view that the meaning of the Constitution must be ascertained by the application of such rules of interpretation as existent at the time the Constitution was framed and adopted. (See section 125 of Tiffany's A Treatise on Government and Constitutional Law at the link provided below)

To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.,M1

[Monte314]

It does seem clear that your personal opinion and the professional assessment of the Honorable Justice Scalia do not coincide here.

But you haven't shown us how your difference of opinion rises to the level of "unscrupulous" behavior on the part of the Honorable Justice Scalia. It would be unscrupulous to levy a charge of this magnitude against a distinguished jurist armed only with a difference of opinion. Please support your positive assertion that the Honorable Justice Scalia has not merely erred in judgement, but is acting "unscrupulously".

[acyckowski]

In D. C. v. Heller.... he did reject Scalia's method of interpretation in favor of my view that the meaning of the Constitution must be ascertained by the application of such rules of interpretation as existent at the time the Constitution was framed and adopted.

Right. The FF believed that an armed populace was a necessary check on the tyranny of government. There was no National Guard Bureau back then, "militias" were raised by states from the aforementioned armed populace...so what is your interpretation of the Second Amendment based on?

[thod]

Right. The FF believed that an armed populace was a necessary check on the tyranny of government. There was no National Guard Bureau back then, "militias" were raised by states from the aforementioned armed populace...so what is your interpretation of the Second Amendment based on?

Isn't this like saying the FF believed the moon was made of cheese. You cant say what the FF believed without some backup.

Because a well regulated Militia is necessary to the security of a free State

This simply tells us that if we want a free state then we need a well regulated militia. It does not say they wanted a free state, they could have wanted a communist dictatorship and the statement would still hold.

They explicitly say well regulated militia's. There is no guidance as how to distinguish between a well regulated milita and one that is not so. Nor is there any mention of whom shall be charged with making that distinction. Thus the government is free to set itself up in that role and define all militia's as not being well regulated.

the right of the people to keep and bear Arms, shall not be infringed.

This seems clear enough that the people have the right to keep and bear arms. But it does not say all arms. Thus by allowing them to retain a kitchen knife the clause has been satisfied.

[Jagger]

It does seem clear that your personal opinion and the professional assessment of the Honorable Justice Scalia do not coincide here.

But you haven't shown us how your difference of opinion rises to the level of "unscrupulous" behavior on the part of the Honorable Justice Scalia. It would be unscrupulous to levy a charge of this magnitude against a distinguished jurist armed only with a difference of opinion. Please support your positive assertion that the Honorable Justice Scalia has not merely erred in judgement, but is acting "unscrupulously".

I used the word "unscrupulous" to signify "unprincipled." Scalia's opinion is unprincipled because he announced that he would follow a certain principle and then doesn't follow it.





Jagger added to this post, 24 minutes and 14 seconds later...

The FF believed that an armed populace was a necessary check on the tyranny of government. The Constitution probably wasn't adopted with the understanding that it would be interpreted according to what the FF believed. The lawmakers probably took for granted that the meaning of the Constitution would be ascertained by applying the well established common law rules of construction to the text of the document.

Here's one of the lawmaker, during one of the State Ratifying Conventions, taking for granted that the well established common law rules of construction applied to the proposed Constitution.The Debates in the Several State Conventions on the Adoption of the Federal Constitution

[Elliot's Debates, Volume 3]

Tuesday, June 24, 1788.

Gov. RANDOLPH....

...I observed that the honorable gentleman's proposition comes in a truly questionable shape, and is still more extra? ordinary and unaccountable for another consideration--that, although we went article by article through the Constitution, and although we did not expect a general review of the subject, (as a most comprehensive view had been taken of it before it was regularly debated,) yet we are carried back to the clause giving that dreadful power, for the general welfare, Pardon me, if I remind you of the true state of that business. I appeal to the candor of the honorable gentleman, and if he thinks it an improper appeal, I ask the gentlemen here, whether there be a general, indefinite power of providing for the general welfare? The power is, "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare," so that they can only raise money by these means, in order to provide for the general welfare. No man who reads it can say it is general, as the honorable gentleman represents it. You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to any thing else, in order to make it that formidable power which it is represented to be.







Jagger added to this post, 1 minutes and 27 seconds later...

...so what is your interpretation of the Second Amendment based on? The actual words of the Amendment and the well established common law rules of construction.

[Jagger]

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931)

--D. C. v. Heller

Scalia likes to cherry pick his rules of construction from the bountiful crop of rules adopted over the years at one time or another by the Supreme Court by various incarnations of the Court. Of all the many rules the Court ever adopted, why do you suppose Scalia cherry picked that particular one and why did he only like part of the rule?

UNITED STATES V. SPRAGUE, 282 U. S. 716 (1931)

The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition. Martin v. Hunter's Lessee, 1 Wheat. 30; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Craig v. Missouri, 4 Pet. 410; Tennessee v. Whitworth, 117 U. S. 13; Lake County v. Rollins, 130 U. S. 662; Hodges v. United States, 203 U. S. 1; Edwards v. Cuba R. Co.,268 U. S. 628; The Pocket Veto Case, 279 U. S. 655; Story on the Constitution (5th ed.) § 451; Cooley's Constitutional Limitations (2d ed.) pp. 61, 70.

[le Duc]

The Constitution probably wasn't adopted with the understanding that it would be interpreted according to what the FF believed.

Well, the founding fathers are the ones that adopted the constitution (via state ratification, of course). If they didn't think it would be interpreted their way, how did they think it would be interpreted?

If I was in their shoes, I wouldn't vote 'aye' on anything without getting or making clarification on nebulous points (which will exist in any document), and expecting those clarifications to be considered if ever conflict arises on said nebulous points.

[thod]

Well, the founding fathers are the ones that adopted the constitution (via state ratification, of course). If they didn't think it would be interpreted their way, how did they think it would be interpreted?

If we are to interpret as the FF would then we have to ask how the FF would have defined arms. They certainly wouldn't have defined them as nuclear bombs, or even machine guns since they were not invented at the time. The FF would have had to interpret arms as meaning muzzle loading muskets, that being the pinnacle of infantry weapons of the time. Likewise with the pistols of the time.

Thus we can say that citizens are allowed to own similar muskets or pistols. Weapons that can fire repeatedly without reloading are not covered.

Bullets are not covered at all. It would not be unconstitutional to ban bullets. After all you load your musket with black powder, wadding, and a ball.

[le Duc]

If we are to interpret as the FF would then we have to ask how the FF would have defined arms. They certainly wouldn't have defined them as nuclear bombs, or even machine guns since they were not invented at the time. The FF would have had to interpret arms as meaning muzzle loading muskets, that being the pinnacle of infantry weapons of the time. Likewise with the pistols of the time.

Thus we can say that citizens are allowed to own similar muskets or pistols. Weapons that can fire repeatedly without reloading are not covered.

Bullets are not covered at all. It would not be unconstitutional to ban bullets. After all you load your musket with black powder, wadding, and a ball.

Um, any chance they might've applied an abstract definition? These guys knew a bit about history, I'm sure, and thus they might've been aware that firearms were a relatively new and constantly being adapted. Is it possible that they could've meant standard weaponry? Certainly, they couldn't imagine such massively destructive weapons as we have now, so we can toss out the howitzers and flame throwers, sure. But what if they just meant the citizens could have an average weapon for self defense, such as the average law enforcement officer carries?

I might also note that a gun with no bullet is not a weapon. Watch the barroom confrontation in Snatch if anyone needs clarification on that point.:wiseguy:

[g2ericks]

The problem I see here is that the "founding fathers" intended that the constitution should be updated and revised on a regular bassis. Instead it has becom a rather ossified document written in language two centuries out of date. Of course there is going to be confusion. The "founding fathers" lived in a time that has long since past. The trouble I see is that all those checks and ballences they instituted to stop tyranny have only managed to prevent coordinated change.

[blueback]

"coordinated change" is often tyrrany. Dictators are very coordinated.

Like Nick Cage said in Lord of War, "Say what you will about dictators but they tend to have a highly refined sense of order."

I think that the Constitution is a very good set of principles upon which to organize a government. However, it becomes useless if those principles are not applied to new situations appropriately. Tradition means being as ignorant today as we were yesterday.

It doesn't really matter whehter or not the FF understood that "arms" would become more powerful. The point is that "arms" did become more powerful. They should be allowed to the extent that they don't create greater instability. Allowing a person to stick a functional howitzer on their lawn will destabilize the neighborhood. Allowing them to own a functional pistol will not. Forbidding them from owning a howitzer will only limit their ability to shell someone several miles away. Forbidding them from owning a pistol will limit their ability to defend themselves and their family. There is a pretty obvious middle ground.

[Jagger]

The fundamental principle of construction adopted in D. C. v. Heller was cherry picked by the five activists from United States v. Sprague, 282 U. S. 716, 731 (1931).

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931)

--D. C. v. Heller

Since the five activists believe that it is the controlling authority on the principles of Constitutional interpretation, let's take a closer look at the case of UNITED STATES V. SPRAGUE. Here's the paragraph from U. S. v. Sprague opinion from which the activists claim to have obtained the principle.

The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition. Martin v. Hunter's Lessee, 1 Wheat. 30; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Craig v. Missouri, 4 Pet. 410; Tennessee v. Whitworth, 117 U. S. 13; Lake County v. Rollins, 130 U. S. 662; Hodges v. United States, 203 U. S. 1; Edwards v. Cuba R. Co., 268 U. S. 628; The Pocket Veto Case, 279 U. S. 655; Story on the Constitution (5th ed.) § 451; Cooley's Constitutional Limitations (2d ed.) pp. 61, 70.


The Sprague Court was apparently articulating a rule of interpretation it derived from eight previous Supreme Court opinions, a section from Joseph Story's Commentaries and two page from Thomas Cooley's Constitutional Limitations. None of the sources citied in Sprague actually contain a sentence which reads, "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition."

The rule espoused in Sprague doesn't exclude the application of other rules when the meaning of a word, term, phrase, clause or other element of language is still dubious after applying the meanings that are normally and ordinarily given to the words. This is just common sense, because many words have more that one normal and ordinary meaning. The word "right", for instance, is commonly used to signify over more than a half dozen intellectual ideas.

The five activists, judging from their snub of the second element of the principle advocated by the Sprague Court, seem to hold the view that words which have more than one meaning don't need further interpretation, which is of course, absurd. The activists, unless they are as dumb as rocks, know that the Second Amendment contains words that are going to still be dubious after applying the normal and ordinary meanings. For example, the normal and ordinary meaning of the word "people" is "persons collectively or in general." Applying that meaning to the word "people" makes the Second Amendment mean "the right of persons collectively or in general to keep and bear arms shall not be infringed", which just don't sound right.

The activists don't want to be bound by any objective rules or principles when they ascertain the meaning of dubious words in the Second Amendment. They want to be able to give free rein to their personal views and put meanings on the words that will produce the outcome their little activist hearts desire.

[blueback]

I suppose giving a person who managed to be selected to the Supreme Court the benefit of the boubt is asking too much? By the time they get there they are pretty much a law-superman. Why would you think that your interpretation of the law is better than theirs?

That would be like me (I'm in the Air Force) thinking that I could run CENTCOM better than anyone else. If I could, they would have picked me for the job.

I'm not saying that people aren't occasionally unqualified for the job they are in, just that a job as prestigious as being the CENTCOM commander or a Supreme Court justice is under such scrutiny that the people selected for it generally deserve the benefit of the doubt.

[Jagger]

Justice William Johnson Believed the Rules of Construction
Applied to the U. S. Constitution

But it is contended that the second section of the third article contains no express cession of jurisdiction; that it only vests a power in Congress to assume jurisdiction to the extent therein expressed. And under this head arose the discussion on the construction proper to be given to that article. On this part of the case, I shall not pause long. The rules of construction, where the nature of the instrument is ascertained, are familiar to every one.

--Supreme Court Justice William Johnston in Martin v. Hunter's Lessee, 14 U.S. 1 Wheat. 304 304 (1816)

[Jagger]

Activist Judges Use Old Foreign Law To Interpret U. S. Constitution


"‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)).

--D. C. v. Heller

Did anyone notice that Rex v. Marks was an English case? The five judicial activist are using very old foreign law to interpret the U. S. Constitution.

[le Duc]

Notice that the opinion was citing Rex v. Marks as used by J. Bishop (an American legal commentator from the 1800s) in his work on interpreting written law. The Court’s conclusion from considering this piece was as follows:

Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

I think that to say the majority relied on old law for their reasoning is somewhat of a misconstruct. This particular section of the opinion considered which clause should be given first reading, and they cite five different commentaries therein, the one cited in the previous post being the last. This particular conclusion they draw is not the pinnacle of their opinion, though, but a minor step in drawing it. Thus a misconstruct: in order for the headline on the previous post to be accurate, one would have to demonstrate that without the old English case, the Court could not render its opinion as it did.

Since there is not an enormous body of law on the Second Amendment (only three previous major cases), why would it not be reasonable for the Court to rely on commentary? And if that, then why not reasonable to rely on commentary that draws conclusions from the English Common Law as well, since our Constitution and system of jurisprudence is based thereupon?

[Jagger]

The five judicial activists chose to apply the rule established by the Court of the Kings Bench in the case of Rex v. Marks (1802), for no reason other than it would produce the results they personally desired.

What makes Joel Prentiss Bishop an authority on which rules of construction should be applied to the U. S. Constitution?

Why isn't the Sprague Court still the authority on which rules of interpretation should apply to the Constitution?

Why aren't Tiffany, Volokh, Dwarris or Sedgwick still the authority on the proper use of preambles in Constitutional interpretation?

So far, the five little activists have, with regard to the rules of construction, switched authorities six times. The five activists are obviously cherry picking. They are choosing to apply only those rules of construction that will produce the outcome they personally desire.

The well established common law rules of construction existent at the time the Constitution was being made, are the rules that should be applied to the Constitution. Those rules are found in Blackstone's Commentaries, which was probably the only source of information about English common law the lawmakers had access to as the Constitution was being made.

[le Duc]

The five judicial activists chose to apply the rule established by the Court of the Kings Bench in the case of Rex v. Marks (1802), for no reason other than it would produce the results they personally desired.

The claim made above remains a misconstruct unless it is demonstrated that the majority rule in Heller could not have been made without reliance upon Marks.

(Rex v. Marks was a landmark criminal law case regarding habeas corpus and the defective commitments of prisoners. A minor point was made in that ruling, which was then quoted in a commentary and then in this recent case.)

What makes Joel Prentiss Bishop an authority on which rules of construction should be applied to the U. S. Constitution?

Why isn't the Sprague Court still the authority on which rules of interpretation should apply to the Constitution?

Why aren't Tiffany, Volokh, Dwarris or Sedgwick still the authority on the proper use of preambles in Constitutional interpretation?

So far, the five little activists have, with regard to the rules of construction, switched authorities six times. The five activists are obviously cherry picking. They are choosing to apply only those rules of construction that will produce the outcome they personally desire.

It is rare indeed to find a Supreme Court ruling that relies on only one source for any conclusion—even a minor one. When making the assertion that the Court is switching authorities, it would be helpful to document the conflict between these six and the extent to which they are at odds with each other.

I am also curious to know, since this seems to be such an important phrase in question, what the problem is with the conclusion the Court drew from these six sources, as cited in my previous post on this thread (Scalia thread, #16, le Duc).

The well established common law rules of construction existent at the time the Constitution was being made, are the rules that should be applied to the Constitution. Those rules are found in Blackstone's Commentaries, which was probably the only source of information about English common law the lawmakers had access to as the Constitution was being made.

What is the conflict between Blackstone’s writings on the rules of construction and the Court’s decision? In looking, I found none readily apparent (he spends several pages on the topic, so I can't quote it all here). The fact that they didn’t quote Blackstone doesn’t mean their ruling conflicts with his principles. And while I agree with the applicability of Blackstone, but it is puzzling to me how a side reference to an English case is unacceptable, but the preferred alternative is English commentary.

While leafing through Blackstone, though, let’s also look at what he says on topics related to the Second Amendment, and see how the ruling in Heller compares:

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. Which is also declared by the same statute [citation omitted], and is indeed a public allowance, under due restrictions of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

(My use of the Bluebook is a little rusty here, but this excerpt is from Blackstone’s Commentaries on the Laws of England, Volume I, Chapter 1, p.139, University of Chicago 1979 facsimile reprint edition.)

[Jagger]

Here's Alexander Hamilton saying that the intention of the lawmakers should be ascertained by applying the well established common law rules of construction to the U. S. Constitution.

Whatever may have been the intention of the framers of a constitution, or of a law. that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.

--Alexander Hamilton on whether the Constitution grants Congress power to establish a national bank

[le Duc]

An excellent quote by a non-jurist.

My queries and observations in my previous post were serious attempts to examine this issue. I would enjoy hearing a rejoinder to them and continuing the discussion.

[Jagger]

Notice that the opinion was citing Rex v. Marks as used by J. Bishop (an American legal commentator from the 1800s) in his work on interpreting written law. The Court’s conclusion from considering this piece was as follows:

Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

I think that to say the majority relied on old law for their reasoning is somewhat of a misconstruct. This particular section of the opinion considered which clause should be given first reading, and they cite five different commentaries therein, the one cited in the previous post being the last. This particular conclusion they draw is not the pinnacle of their opinion, though, but a minor step in drawing it. Thus a misconstruct: in order for the headline on the previous post to be accurate, one would have to demonstrate that without the old English case, the Court could not render its opinion as it did.

Since there is not an enormous body of law on the Second Amendment (only three previous major cases), why would it not be reasonable for the Court to rely on commentary?

The Constitution should be interpreted according to the well established common law rules of construction existent at the time the Constitution was made. Prior to the adoption of the Constitution, the founding fathers interpreted all legal instruments according to the common law rules of constriction.

Here are a couple of examples:

**************

Journals of the Continental Congress, 1774-1789
MONDAY, JUNE 17, 1782

The Committee [Mr James Madison, Mr Ezekiel Cornell, Mr Elias Boudinot] to whom the Report of the Commissioners for settling a Cartel &c. and also the Motions of Messrs. [James] Madison and [Arthur] Middleton were referred, Report,

That it appears to your Committee that the British Commissioners did refuse to accede to any measures for liquidating the accounts of past expenditures for the feeding of prisoners of war, or to make any provision for their future support.

That although by the articles of capitulation of York Town, the Capitulants were to be supplied with the same rations as were issued to our own soldiers, yet on every rational and known rule of construction, it must have been understood that the same was to have been done at the expence of the enemy, therefore,

Resolved, That His Excellency the Commander in Chief be instructed to acquaint the British General, that unless proper measures are taken for the payment of the Rations to be issued to the British Prisoners of War in possession of the United States, under the capitulation of York Town, as also for payment of the rations already issued to them, and that on or before the first day of August next, that orders will be given for reducing the ration to be issued in future to said Prisoners in such manner as Congress shall direct.

And if that, then why not reasonable to rely on commentary that draws conclusions from the English Common Law as well, since our Constitution and system of jurisprudence is based thereupon?

******************

Journals of the Continental Congress, 1774-1789
TUESDAY, OCTOBER 17, 1780

As to the proclamation of the king of Great Britain of 1763, forbidding his governours in North America to grant lands westward of the sources of the rivers falling into the Atlantick ocean, it can by no rule of construction militate against the present claims of the United States. That proclamation, as is clear both from the title and tenor of it, was intended merely to prevent disputes with the Indians, and an irregular appropriation of vacant land to individuals; and by no means either to renounce any parts of the cessions made in the treaty of Paris, or to affect the boundaries established by ancient charters. On the contrary, it is expressly declared that the lands and territory prohibited to be granted, were within the sovereignty and dominion of that crown, notwithstanding the reservation of them to the use of the Indians.

*******************



The rules of construction were applied to the legal instruments that authorized the convention that framed the Constitution.

The Federalist Papers : No. 40

The Powers of the Convention to Form a Mixed Government Examined and Sustained
From the New York Packet.
Friday, January 18, 1788.
MADISON

To the People of the State of New York:

THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the "appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same. ''The recommendatory act of Congress is in the words following:

"WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT:

"Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.

''From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

********************




The founding fathers interpreted the Constitution according to the common law rules of construction when they wrote the Federalist Papers.

*****************

The Federalist Papers : No. 83

The Judiciary Continued in Relation to Trial by Jury
From MCLEAN's Edition, New York.
HAMILTON

To the People of the State of New York:

THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to CIVIL CAUSES, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to CRIMINAL CAUSES. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the EXISTENCE of MATTER, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning.

With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man of discernment must at once perceive the wide difference between SILENCE and ABOLITION. But as the inventors of this fallacy have attempted to support it by certain LEGAL MAXIMS of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.

The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals''; or, "The expression of one thing is the exclusion of another.'' Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter.

The rules of legal interpretation are rules of COMMONSENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others.

*********************

The opinion of the English Court in Rex v. Marks didn't even exist at the time the Constitution was being made. There was no rule of construction in existence at the time the Constitution was made that allowed an interpreter to explore anything said or written after a legal instrument was made .

[blueback]

The constitution is based on a set of principles. It should be reinterpreted occasionally as the world changes around it to ensure we are still applying the principles consistently. We can't do that if we limit ourselves to only what was known at the time it was written.

[Henry]

In D. C. v. Heller, Scalia assumes, incorrectly I might add, that the text of the Second Amendment should be understood as "understood by the voters ." Then he immediately "rephrases" the Amendment, not according to how it was "understood by the voters", but according to how it was understood by Joel Tiffany.

In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.....

.....The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See §585,
p. 394 (1867) J. Tiffany, A Treatise on Government and
Constitutional Law

Joel Tiffany wasn't even a voter of the founding generation. However, he did reject Scalia's method of interpretation in favor of my view that the meaning of the Constitution must be ascertained by the application of such rules of interpretation as existent at the time the Constitution was framed and adopted. (See section 125 of Tiffany's A Treatise on Government and Constitutional Law at the link provided below)

To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.,M1


This is a reasonable philosophical interpretation of the document that is not even close to being "unscrupulous".

Who cares what the founders intended? Hell, who can even credibly establish what they wanted?

[le Duc]

The Constitution should be interpreted according to the well established common law rules of construction existent at the time the Constitution was made. Prior to the adoption of the Constitution, the founding fathers interpreted all legal instruments according to the common law rules of constriction.

Here are a couple of examples:
...

Of the four examples given, two are from the Continental Congress, showing that those assembled reference undefined rules of constructions when considering a war treaty and regnal proclamation. The other two are from the Federalist Papers, which are more relevant.

I have no problem with the assertion made: let’s use the common law rules of construction. Blackstone’s own words on the subject say that a jurist should explore:

[E]ither the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.

Blackstone’s Commentaries on the Laws of England, Volume I, Chapter 1, p.59, University of Chicago 1979 facsimile reprint edition.

In examining any of the elements Blackstone lists, no jurist would offer up an opinion without supporting references and documentation showing how the opinion conformed with the rules of construction or interpretation. This is how the common law works.

The opinion of the English Court in Rex v. Marks didn't even exist at the time the Constitution was being made. There was no rule of construction in existence at the time the Constitution was made that allowed an interpreter to explore anything said or written after a legal instrument was made.

This assertion is problematic in that every court opinion must necessarily cite references to how a particular point has been examined elsewhere; this would necessarily include examinations after the creation of the law or document that is being examined, particularly when considering the elements of effect and consequence. This was common law methodology at the time the Constitution was framed, and thus, absent evidence to the contrary, the founders would have anticipated that these methods would continue to be used, and approved of them.

Therefore, to assert that the use of these later examinations is inappropriate, it must only be from misapplication or irrelevance, neither of which have been demonstrated within this discussion. And thus my queries from my previous post remain:

When making the assertion that the Court is switching authorities, it would be helpful to document the conflict between these six and the extent to which they are at odds with each other.
…
I am also curious to know, since this seems to be such an important phrase in question, what the problem is with the conclusion the Court drew from these six sources?
…
What is the conflict between Blackstone’s writings on the rules of construction and the Court’s decision?

[Jagger]

Of the four examples given, two are from the Continental Congress, showing that those assembled reference undefined rules of constructions when considering a war treaty and regnal proclamation. The other two are from the Federalist Papers, which are more relevant. All English legal instruments were interpreted by applying common law rules of construction. There weren't any rules of construction other than the ones adopted by the English Courts. The rules were non controversial. They were universally accepted.

Treaties between nations were also interpreted according to rules of construction. Vattel was the authority on the law of nations and the rules of interpretation that applied to instruments governed by the law of nations.

I have no problem with the assertion made: let’s use the common law rules of construction. Blackstone’s own words on the subject say that a jurist should explore:

[E]ither the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.

Blackstone’s Commentaries on the Laws of England, Volume I, Chapter 1, p.59, University of Chicago 1979 facsimile reprint edition.

In examining any of the elements Blackstone lists, no jurist would offer up an opinion without supporting references and documentation showing how the opinion conformed with the rules of construction or interpretation. This is how the common law works.



This assertion is problematic in that every court opinion must necessarily cite references to how a particular point has been examined elsewhere; this would necessarily include examinations after the creation of the law or document that is being examined, particularly when considering the elements of effect and consequence. None of the rules of construction admit any statements made after the law was enacted. The lawmakers couldn't have possible intended for their will to be ascertain according to statements that didn't even exist when they were making the law.. If the law was going to be what was said after the legal instrument was enacted, it would have been pointless to have made the legal instrument in the first place.

It is absurd to believe the First Amendment's religion clauses just laid around the shack with no meaning, until a decade passed and Thomas Jefferson wrote a letter to the Danbury Baptists. What if Jefferson had been killed in a riding accident the day before he wrote the latter?

This was common law methodology at the time the Constitution was framed, and thus, absent evidence to the contrary, the founders would have anticipated that these methods would continue to be used, and approved of them. I agree.

Therefore, to assert that the use of these later examinations is inappropriate, it must only be from misapplication or irrelevance, neither of which have been demonstrated within this discussion. And thus my queries from my previous post remain: No rule of construction existent at the time the Constitution was made, admits exploration of anything said, written or done after the instrument being construed was adopted or enacted. I know because I tried to find a loophole I could use to sneak in some ex post facto evidence. There isn't one. If you can find one, please tell me where it is.....

[Jagger]

The Second Amendment is extremely ambiguous. Especial when the rules of construction require that,

every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end...where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.


In Federalists No. 40, James Madison wrested with the problem that the goal of achieving a NATIONAL and ADEQUATE GOVERNMENT couldn't be achieved by means of mere ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION. The means was insufficient to achieve the goal. Therefore, Madison sacrificed the means to the more important goal and expanded the means enough to achieve the goal.

In the case of the Second Amendment, the means to achieving the goal of "a well regulated militia" - "the right of the people to keep and bear arms" -, exceeds, rather than falls short of providing, a means to achieving "a well regulated militia."

The issue is whether the means to achieving "a well regulated militia" should be scaled back, in the name of public safety, to what is necessary to achieve "a well regulated militia."

[Fridays Child]

I read this thread with interest, noting that the original poster seemed not to be responding to questions posed. A little random googling revealed that on a sample of #1, #6, #12, #15 and #17 the text appears almost entirely, if not entirely, in various political, news or blog sites.

I politely ask Jagger what the point of this thread is. And whether there is some rational explanation for the seeming plagarism.

[Karamazov]

I think the OP is making this into a complicated issue, when it's not. The Second Amendment isn't just some long run-on sentence.

[Jagger]

...the following seems to be defective : — " 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."* A militia is "the body of soldiers in a state enrolled for discipline, but not engaged in actual service, except in emergencies, as distinguished from regular troops, whose sole occupation is war or military service.""}" Is the keeping and bearing of arms by the citizens in the militia while attending their military services, all that is not to be infringed ? Or are they at liberty to keep and bear arms when, and where, and how they will? If the latter, what has the militia to do with the question? The militia would not be one whit better regulated from the circumstance of the citizens keeping and bearing arms off duty. From the above rationale, a law that " the citizens, at the command of the magistrate, shall wear weapons and serve in the wars," might have been as justly inferred.

--Samuel Higgs Gael (1840); A Practical Treatise on the Analogy Between Legal and General Composition

[Karamazov]

"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."

As I've said before, It isn't a run-on sentence and you refuse to respond to posters questions, regarding the direction you are taking this into.

It seems to me that many legal scholars agree that it was meant to be interpreted as it was read, like so:

1. A well regulated militia is necessary (the military) for the security of the free state.
2. Seeing the imminent possibility of an unruly government breaching it's contract with it's citizens, the people would be able to bear arms and reserve the right to overthrow the presiding government again.

I've had this debate before, so that's all I have to say.