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Thread: Constitutional Originalism

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    Senior Member dneal's Avatar
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    Default Re: Constitutional Originalism

    I like Scalia’s argument because it is logical, and a reasonably objective approach.

    I do not see an alternative other than some nebulous “wise Solomon” approach, where any outcome could be obtained. I also note that opponents to textualism/originalism do not offer a competing theory, but only criticism.

    The “living constitution” proponents, to continue with the rule book analogy; might have a football referee decide to award 4 points for an extraordinary effort. The player made it to the goal line, and was only unsuccessful due to more or larger and stronger players stopping him. Half the watchers were disheartened, and thought there should be some credit given. The opposition admits the effort was extraordinary.

    The rules were understood. The rule makers are free to change them for the next game or season, but they were the rules in effect at the time.

    It's amazing how much panic one honest man can spread among a multitude of hypocrites.
    - Thomas Sowell

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    Default Re: Constitutional Originalism

    Thanks, yes. I understand your position.

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    Default Re: Constitutional Originalism

    A humble suggestion:

    - Start with a few essays by Scalia. Try to understand what he said. I looked, and easily found several newspaper accounts of speeches Scalia gave, but each quoted a few sentences from what he had said. None gave his entire speech.

    - Build up some knowledge of how we got the US Constitution. What did the Founders and Framers think they were up to? What were their concerns and their alternatives?

    - Find more Scalia. Does his main argument fit?

    Otherwise, this breaks apart.

    Here is Scalia, https://masonlec.org/site/files/2012...alia-essay.pdf,

    "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws"

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    dneal (December 8th, 2022)

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    Default Re: Constitutional Originalism

    Quote Originally Posted by welch View Post
    A humble suggestion:

    - Start with a few essays by Scalia. Try to understand what he said. I looked, and easily found several newspaper accounts of speeches Scalia gave, but each quoted a few sentences from what he had said. None gave his entire speech.

    - Build up some knowledge of how we got the US Constitution. What did the Founders and Framers think they were up to? What were their concerns and their alternatives?

    - Find more Scalia. Does his main argument fit?

    Otherwise, this breaks apart.

    Here is Scalia, https://masonlec.org/site/files/2012...alia-essay.pdf,

    "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws"
    I've read a lot of Scalia, to include his books; but that was a new one for me. Thanks.

    It's amazing how much panic one honest man can spread among a multitude of hypocrites.
    - Thomas Sowell

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    Default Re: Constitutional Originalism

    Quote Originally Posted by dneal View Post
    Quote Originally Posted by welch View Post
    A humble suggestion:

    - Start with a few essays by Scalia. Try to understand what he said. I looked, and easily found several newspaper accounts of speeches Scalia gave, but each quoted a few sentences from what he had said. None gave his entire speech.

    - Build up some knowledge of how we got the US Constitution. What did the Founders and Framers think they were up to? What were their concerns and their alternatives?

    - Find more Scalia. Does his main argument fit?

    Otherwise, this breaks apart.

    Here is Scalia, https://masonlec.org/site/files/2012...alia-essay.pdf,

    "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws"
    I've read a lot of Scalia, to include his books; but that was a new one for me. Thanks.
    I've read no Scalia, so feel free to link to a few of his essays.

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    Senior Member dneal's Avatar
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    Default Re: Constitutional Originalism

    I’ve read “Reading Law” and “A Matter of Interpretation”. That essay sums his philosophy so that any other would be repetitive. I do enjoy listening to him speak, and there are several recordings of his various talks.

    It's amazing how much panic one honest man can spread among a multitude of hypocrites.
    - Thomas Sowell

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    Default Re: Constitutional Originalism

    Using an iPad limits my searches but...
    This is a link the Table of Contents to a book Scalia jointly authored. It reads like an outline, but it gives a sense of his thought regarding construction.
    https://www.law.uh.edu/faculty/thest...dingLawTOC.pdf

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    dneal (December 12th, 2022), welch (December 15th, 2022)

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    Default Re: Constitutional Originalism

    It's actually Reading Law which dneal mentioned.

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    dneal (December 12th, 2022)

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    Default Re: Constitutional Originalism

    I'm going soon to Columbia's campus and hope to find Reading Law in the law library and A Matter of Interpretation at Barnard. Seems like Interpretion is the place to start. The book includes an essay by Gordon Wood, a great American historian and one of my favorites.

    For some background on what became the American Revolution, take a look at Wood's The Americanization of Benjamin Franklin. Focus on Franklin's thoughts toward a future constitution for the American colonies, and on Franklin's ideas for a constitution that would cover both the British homeland and North America.

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    dneal (December 15th, 2022)

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    Default Re: Constitutional Originalism

    A Matter of Interpretation is the essay you linked above. I thought it looked familiar, but Scalia is so consistent I didn't realize it at first glance.

    The benefit of the book is the critiques, and Scalia's response.

    It's amazing how much panic one honest man can spread among a multitude of hypocrites.
    - Thomas Sowell

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    welch (December 17th, 2022)

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    Default Re: Constitutional Originalism

    Quote Originally Posted by dneal View Post
    A Matter of Interpretation is the essay you linked above. I thought it looked familiar, but Scalia is so consistent I didn't realize it at first glance.

    The benefit of the book is the critiques, and Scalia's response.
    Yes. I'm looking forward to Gordon Wood's essay and to Scalia's response.

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    Default Re: Constitutional Originalism

    Ironically, the Second Amendment could be used to support the ownership of military type firearms, but not firearms normally used for home protection, hunting, and sport shooting.

    "Second, in 2008, former Justice Antonin Scalia wrote the majority opinion in District of Columbia v. Heller, which — again for the first time in over 200 years — established the right of every American under the Second Amendment to own a gun for self-defense. And he rounded up four other votes.

    However, it’s important to note that even in Heller, Scalia took pains to argue that as with other rights, those granted under the Second Amendment are not unlimited — and that governments retain the power to regulate what kind of guns, or how many, people may own.

    Of course, those provisions of Heller are conveniently ignored by gun worshippers like Republican Sen. Ted Cruz of Texas, who uphold the Second Amendment as reinterpreted by Scalia. That flawed reasoning allowed a Texas teenager to buy two AR-15’s on his 18th birthday, walk into an elementary school and mow down 19 students and two teachers.

    We are a sick nation indeed, if we allow that idiocy to stand."
    https://www.cnn.com/2022/06/09/opini...ess/index.html
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

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    TSherbs (December 18th, 2022)

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    Default Re: Constitutional Originalism

    We are sick for guns, indeed.

  20. #94
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    Default Re: Constitutional Originalism

    Quote Originally Posted by TSherbs View Post
    We are sick for guns, indeed.
    That's not fair, or accurate.

    It's amazing how much panic one honest man can spread among a multitude of hypocrites.
    - Thomas Sowell

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    Default Re: Constitutional Originalism

    Quote Originally Posted by TSherbs View Post
    We are sick for guns, indeed.
    I hope your fever and illness passes, allowing you to return soon to reasoned discussion.

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    Default Re: Constitutional Originalism

    Quote Originally Posted by TSherbs View Post
    We are sick for guns, indeed.

    "The NRA was founded in 1871 after the Civil War by Army and Navy Journal editor William Conant Church (pictured above) and General George Wood Wingate of the Union Army, who were both dismayed at the horrible accuracy of Union soldiers during the Civil War. The original purpose of the organization was for rifle marksmanship training." https://www.mic.com/articles/23929/1...hip%20training.

    This is a wonderful and useful concept which include safety, proper maintenance, and skills development.

    "It wasn’t until the early 1970s that a call to the Second Amendment—an individual’s right to bear arms—became part of the NRA’s narrative, and a schism in the group began to emerge. In 1975, Harlon B. Carter was brought on as part of a lobbying arm, the Institute for Legislative Action. A Texan and a former U.S. Border Patrol officer, Carter believed deeply in expanding gun owners’ rights. The N.R.A. actually fired Carter in 1976, but in May 1977 he and a small group of likeminded employees who had also been let go hijacked the annual meeting and reconfigured the agenda.

    Carter became the NRA’s Executive Director, changing the culture and direction of the organization drastically and cementing its dedication to “protecting the Second Amendment.” This telling article shows the deep divide within the Association, describing Carter and his group, which came to be known as “the Federation,” as “the most extreme of the extremists” who left no room for argument, discussion or disagreement: “Let a timorous official show the slightest weakness, and his name will go down on the Federation’s secret ‘hit list.’”

    https://timeline.com/the-hostile-tak...a-e3af86edccae

    As history teaches us, the NRA morphed into a Republican strong hold which vilified politicians that didn't agree with a "free for all" handgun ownership and little gun control.

    Maybe I am a woke gun owner and user with enough literacy to be able to read the Second Amendment and know what everyone before Scalia already understood was its purpose including Chief Justices.
    Last edited by Chuck Naill; December 18th, 2022 at 11:40 AM.
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

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    Default Re: Constitutional Originalism

    Quote Originally Posted by kazoolaw View Post
    Quote Originally Posted by TSherbs View Post
    We are sick for guns, indeed.
    I hope your fever and illness passes, allowing you to return soon to reasoned discussion.
    Hey, don't blame the doctor for the disease.

  24. #98
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    Default Re: Constitutional Originalism

    Quote Originally Posted by kazoolaw View Post
    Quote Originally Posted by TSherbs View Post
    We are sick for guns, indeed.
    I hope your fever and illness passes, allowing you to return soon to reasoned discussion.
    What would constitute a "reasoned discussion" given the topic? Perhaps something that was not the original and historical intent?
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

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    Senior Member dneal's Avatar
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    Default Re: Constitutional Originalism

    Quote Originally Posted by TSherbs View Post
    Quote Originally Posted by kazoolaw View Post
    Quote Originally Posted by TSherbs View Post
    We are sick for guns, indeed.
    I hope your fever and illness passes, allowing you to return soon to reasoned discussion.
    Hey, don't blame the doctor for the disease.
    The disease, with symptoms manifesting in post #4:

    Screenshot 2022-12-18 at 2.36.28 PM.png

    It's amazing how much panic one honest man can spread among a multitude of hypocrites.
    - Thomas Sowell

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    Default Re: Constitutional Originalism

    Looks like a drunk post.
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

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