Tag Archives: originalism

Sep 17 2012

Huh?

Legal interpretation is often predicated on syllogisms.  Syllogisms are essentially two statements in which a conclusion can be drawn from the relationship of the two statements.  For example: Fred lives in France.  Joan lives in the same country as Fred.  Then, Joan must live in France.

Supreme Court Justices Antonin Scalia and Clarence Thomas are self-described “originalists.”  Simply stated, an originalist must decide all cases on the original literal meaning of words in the Constitution.  Now here is the syllogism.

During a recent session at the Yale Law School, Justice Thomas conceded that the phrase in the Constitution “we the people” did not include blacks at the time of its drafting.  As an originalist then Justice Thomas must then conclude that blacks do not fall under the protection of the Constitution.  Justice Thomas is black, therefore he is not afforded the protections of the United States Constitution.

Here comes the rub.  If Justice Thomas is not a protected class under the Constitution, then why is he on the bench and not out under the scorching sun picking crops as a slave?

Because this result is ludicrous on its face, Justice Thomas goes on to explain that the Constitution had an unwritten “intent” to include people like him in the future.  Wait a minute, something doesn’t make sense.  Isn’t Justice Thomas an originalist?

So let’s visit that syllogism again.  Originalists interpret the Constitution strictly on what was written.  Justice Thomas says that at least in this instance, the framers of the Constitution intended to include blacks, even though that was not expressly stated.  Then Justice Thomas must not be an originalist.

I think that I am getting a migraine and have to go lie down.

See the Washington Post article here.

Aug 3 2012

You Do Not Have A Right To Own Firearms, Unless

The Second Amendment to the Constitution of the United States of America clearly states:

“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.”

If you take out both modifying clauses and reduce the Second Amendment to its essence, It reads: “A well regulated Militia, …, shall not be infringed.”

Both phrases: “being necessary to the security of a free State” and “the right of the people to keep and bear Arms”, are modifiers of the term Militia and are not the primary intent of the Second Amendment. Any grammarian can see that, you don’t have to be a Constitutional Scholar.

If one reads the legislative history of the Second Amendment (to non lawyers, legislative history is the collection of all drafts, written statements, debates, etc.,, taken as a whole) it becomes abundantly clear that the intent of the framers of our Constitution was that the Second Amendment was meant to facilitate the maintenance of “a well regulated Militia.”

If I may paraphrase the Second Amendment, it says that your right to bear arms is sacrosanct as long as you are part of a “well regulated Militia.” So if you want to bear arms freely, I believe (with some knowledge of Constitutional law) that you should join a well “regulated” Militia or the National Guard.

I fail to understand why noted legal scholars of Originalism, such as Antonin Scalia, cannot see this.

Phil