Why don't you put together a list of all the rules, in the order in which they should be used, that you believe should be used, similar to the one the lawmakers would have had access to at the time the Constitution was being made, in the book that was in the hands of every man at the Virginia Ratifying Convention of 1788?

That's not what Blackstone said....

Why don't you make that list I suggested earlier?

Why don't we limit the scope of our inquiry to the rules that should be used to find the meaning of the Original Constitution and the first ten amendments?

What's the name of that case, my learned friend? I want to learn more about it.....

In that case, we going to have to give Louisiana back and abolish the Air Force...

How fucking ignorant can one person be! YOU POSTED THE F-CKING EVIDENCE YOURSELF!!!!!! Go back and read your own post!

Well, first of all, that is a bit of a red herring as far as I am concerned, because I have made it absolutely clear that I do not believe in a doctrine of original INTENT, but of original understanding. They are fundamentally different things.

Of course a law can have implications and meaning unintended by those who passed it. It should NOT be given a meaning that it was not generally understood to have (or which contradicts what it was clearly understood to mean). That is the reason that it is simply judicial lawlessness for judges to decide that 100+ year old legal texts actually, to the surprise of everyone, mandates gay marriage or proscribes laws against sodomy.

If there was sufficient contemporaneous evidence to indicate that "all men are born equal" in the Massachusetts constitution was generally understood at the time of its ratification to proscribe slavery in Massachusetts, then they were absolutely correct in so ruling, if there was not, if there was even a scrap of evidence indicating that it was not believed to do so, they were abusing their authority.

Again, if there was statutory or constitutional language which was clearly understood to mean that, fine. My guess is they did not, and in fact probably flew in the face of contemporaneous indications of a contrary understanding of the text.

WRONG, not that it "allowed" gay marriage, but that it in fact REQUIRES it. If you believe that the purpose of the courts is to apply the law as it was generally understood at the time of its passage, it is fundamentally dishonest to confer any such meaning to it. Not only was there no indication that anyone understood it to mean that, but overwhelming evidence that they rejected out of hand such a meaning.

Well duh, yes it has been "interpreted" to do exactly that, but the question at hand is whether or not those interpretations represent legitimate judicial interpretation, or the substitution of the personal views of the judges over what the law was understood to mean by society as evidenced by its contemporaneous and subsequent actions.


Absolutely not. I think we are better when signficant social change is the result of societal debate and discussion, and the democratic process.

Ever wondered why the, despite the existence of the "equal protection clause", which you no doubt find to be a legitimate source of judicial creation of previously rejected "rights" that the XIV, XV, XIX, and XXVI Amendments were neccesary?

First of all, please provide a citation to where Scalia specifically said it was ok to slap someone around to get them to "confess" for the purpose of confession as opposed to garnering information of importance to society more broadly then the context of a criminal conviction:

That said, going back to your characterization of Scalia's position on torture. Would it suprise you to know that until rather recently in our history nobody understood the 4th or 5th amendment to have any bearing on criminal prosecutions? Even if a confession was coerced, or the result of an unreasonable search and seizure, the evidence was nonetheless admissable in a court of law. The remedy for the person who's rights had been violated were civil in nature, and not exclusionary.

You may not LIKE that interpretation, you may think they exclusionary rule makes us "better off", but that does not change the FACT that it was the result of judges ignoring the clear and established understanding of the meaning of those amendments as evidenced by the overwhelming traditions and customs of our society.

You may not LIKE the fact that the "cruel and unusual punishment" clause was understood only to refer to treatment post conviction by the society that ratified it, but it was. Just as you most likely dislike that the Death Penalty was not understood to be "cruel and unusual punishment".

Let me ask you this. If execution is not a legal punishment for bank robbery, why isn't it a violation of either the "cruel and unusual" or "due process" clause for police to shoot someone engaged in a bank robbery, imposing a punishment not authorized under the law for the crime they are committing, and doing so without benefit of a trial?

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Why don't you make a list of your rules, with any instructions or explanations you feel are appropriate and show that each one existed at the time the Constitution was being made. Then apply your rules to the question of what the Constitution means as regards the relationship of religion to the government.

I would especially like to see you establish that the following rules actually existed at the time the Constitution was made.

1. If one meaning is more sensible given the specific context (for example, a few terms ago, the SCOTUS heard a case involving a criminal statute which permitted more severe sentencing if a gun were "used" in the commission of a crime. The case in question involved a person who had traded a gun for drugs, and was sentenced more harshly under the statute. The majority found that this was perfectly acceptable under the language of the statute. Scalia disented, arguing that in ordinary discourse, if someone ask if you "use a cane" (for example) they mean for its intended purpose, and not if you perhaps "use" your grandfather's antique cane as a decorative piece in your home. He thus dissented arguing that the word "use" in the statute reasonably meant the "use" of a gun for its intended purpose--as a weapon--and not as it was in this case, as a medium of exchange.

2. By the actions promulgated by those who passed the law. For example, if the question is whether a particular law drafted 200 years ago permits X and the text is vague or ambiguous; but, we see that immediately following passage of that law, the congress did the very thing we are questioning the permisability of, that is clear evidence in support of that interpretation under the canons. For example, does the First Amendment prohibit spending ANY Federal funding that in any way, shape, or form promotes or supports religion. Well, the fact that the post of Congressional Chaplain was not viewed as proscribed by the First Amendment belies any such absolutist and draconian understanding of it.

3. The "long standing traditions and customs society". If something has been done in an unbroken chain before, and since the passage of an ambiguous text, it should not be construed as proscribed by that text. For example, it is not reasonable to conclude that equal protection language which has been in place for over a century proscribes the failure to recognize gay marriage. It is clear from over 100 years of history that it was not understood to mean any such thing by those who wrote or ratified it.

4. General deference to the interpretation of other branches of ambiguities in the text. Where there are multiple reasonable interpretations, judges should generally defer to the interpretation of other branches so long as they are not unreasonable.

It is the f-cking JOB OF A JUDGE it is why they TEACH the canons in law schools and why people publish volumes and volumes on them. It was understood to be part of the way judges were to exercise "the judicial authority".

It was actually orthodoxy until quite recently.

Perhaps you can cite how YOU think judges are supposed to go about interpreting the law if not by the canons which have existed for centuries?


I don't give a damn about going out of my way to "prove" to you that which to anyone not utterly ignorant as you clearly are on this topic is common knowledge. That is like asking a doctor giving you a diagnosis of kidney failure to "prove" that you have a kidney, just because you are too ill-informed or obtuse to accept common knowledge in the field is not my concern.

Excuse me, but you are now contradicting yourself. YOU PRESENTED the John Marshall quote as "the rule that existed when the Constitution was made." and now you are asking me to "prove" to you what you have already said was the case? How idiotic is that?

Again you are too obtuse to realize the obvious. What you cited refer to the very canons I mention. Just because your are not educated enough in either the English language or in the law to recognize that Marshall was referring to the very rules I have been talking about I gave you a point by point comparison of your own citation and my earlier posts and you just don't get it.

You problem think that if I tell you to turn left, and someone else tells you to turn the opposite of right you would get hopelessly confused, unable to realize that we are both telling you the EXACT same thing, merely in somewhat different words, but ultimately with the same substantive meaning.

Blackstone's Commentaries (who I doubt you've ever read the commentaries of in their entirety) are not a set of "rules" for HOW our constitution is to be interpreted. There are a comprehensive and highly useful set of commentaries on the laws of England.

Their use in interpreting the original understanding of our constitution derives not from them being a checklist of canons for HOW to interpret legal texts, but rather as excellent source material for what various aspects of the constitutions text (much of which like "cruel and unusual punishment" and "unreasonable searches and seizures") were lifted with a pre-existing understood meaning from English law.

Blackstone is a good reference for WHAT the original meaning of the Constitution was, and as such fits perfectly in with the canons of construction's most basic precept that it is the contemporary understanding of the law that is to be expounded upon by the courts.

No, it is what you are mistakingly taking away from Blackstone. Blackstone's commentaries were not a set of rules for HOW to interpret legal texts, but rather were his scholarly research on what the general understood meaning of the laws of England were at the time he wrote it. Blackstone is a perfectly legitimate (if not one of the best) sources of evidence of the contemporaneous understanding of much of the text of the constitution.

BTW, why don't you live up to YOUR OWN standards. Please provide evidence that any legislator has ever intended that BLACKSTONE be used to interpret the constition or any laws they have passed. What's good for the goose...

The Airforce has already been addressed, it is a meaningless semantic distinction for constitutional purposes, since it could just as readily be called the "air division" of the Navy or of the Army.

As for the Louisiana purchase, like many people you don't seem to be aware that this was accomplished by means of a TREATY. The Constitution CLEARLY empowers the Federal Government to enter into treaties, and one of the established and accepted objects of treaties long before the ratification of the Constitution was land acquisition.




Because the collected canons are multi-volume and would be a bit time consumring to post here, and because they are not, and have never been a step-by-step checklist.

You are clearly utterly ignorant and uneducated in this I refuse to

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

As I said, I don't care about convincing someone too obtuse to realize they are contradicting themselves, or demanding evidence of something which is common knowledge to anyone with even the most basic understanding of the field.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

How do you know?

What are the names of these volumes?

You still haven't shown that they all even existed at the time the Constitution was made.

I would especially like to see you establish that the following rules actually existed at the time the Constitution was made.

1. If one meaning is more sensible given the specific context (for example, a few terms ago, the SCOTUS heard a case involving a criminal statute which permitted more severe sentencing if a gun were "used" in the commission of a crime. The case in question involved a person who had traded a gun for drugs, and was sentenced more harshly under the statute. The majority found that this was perfectly acceptable under the language of the statute. Scalia disented, arguing that in ordinary discourse, if someone ask if you "use a cane" (for example) they mean for its intended purpose, and not if you perhaps "use" your grandfather's antique cane as a decorative piece in your home. He thus dissented arguing that the word "use" in the statute reasonably meant the "use" of a gun for its intended purpose--as a weapon--and not as it was in this case, as a medium of exchange.

2. By the actions promulgated by those who passed the law. For example, if the question is whether a particular law drafted 200 years ago permits X and the text is vague or ambiguous; but, we see that immediately following passage of that law, the congress did the very thing we are questioning the permisability of, that is clear evidence in support of that interpretation under the canons. For example, does the First Amendment prohibit spending ANY Federal funding that in any way, shape, or form promotes or supports religion. Well, the fact that the post of Congressional Chaplain was not viewed as proscribed by the First Amendment belies any such absolutist and draconian understanding of it.

3. The "long standing traditions and customs society". If something has been done in an unbroken chain before, and since the passage of an ambiguous text, it should not be construed as proscribed by that text. For example, it is not reasonable to conclude that equal protection language which has been in place for over a century proscribes the failure to recognize gay marriage. It is clear from over 100 years of history that it was not understood to mean any such thing by those who wrote or ratified it.

4. General deference to the interpretation of other branches of ambiguities in the text. Where there are multiple reasonable interpretations, judges should generally defer to the interpretation of other branches so long as they are not unreasonable.

What was the orthodoxy, pertaining to the interpretation of constitutions and other legal instrument, at the time the Constitution was made?

They should use the rules that the lawmakers probably meant for them to use. What rules do you believe the makers of the U. S. Constitution believed should be used to ascertain the meaning of the document, and why do you believe the lawmakers wanted those rules to be used?

I take that to mean you have no evidence that the rules you want us to use actually existed when the Constitution was made....

I don't remember quoting John Marshall.

What's the common knowledge regarding the rules the lawmakers meant for us to use to interpret the original Constitution and the first ten amendments?

This is my choice:


Enduring but not Living: Judges should strive to apply laws based on what the language of the law in question would have been generally and reasonably understood to mean at the time it was passed.
If the constitution and "language of the law" is "living" that means it's changeable and can be "changed" to suit the moods of a few eliteists who decide to "change" it.

It means NOTHING if it can be "changed" and "molded" to mean ANYTHING.

That's all.

What did Blackstone say, if anything, was the most unbiased and most intelligent method to ascertain the intent of those who made a legal instrument?

Is there any evidence that the lawmakers believed any part of Blackstone's Commentaries should be used to interpret the Constitution?

Show us some evidence that the lawmakers believed that at the time they were framing and ratifying the Constitution and the Bill of Rights.

Show us some evidence that the founders believe that.

Are you sure Blackstone's Commentaries don't contain rules for how to interpret legal instruments?

Understood by whom?

What if most of the people want it to change so that the President could wage war against the Barbary Pirates or the nation could acquire the Louisiana Territory? Should the Constitution be able to grow new provisions to permit these things to be done without properly amending it?

That cuts both ways. For example, it would cut out Congressional authority to establish an Air Force.

NOTHING, he was not espousing a general method for interpreting legal texts he was providing HIS view on the generally understood meaning of the the English Law at the time. (which he himself faithfully adhered to the aforementioned canons in determining). This is not a METHOD for interpreting, but rather it is a very useful SOURCE for going about and determining that which the canons say is the object of textual interpretation, determining what the "plain meaning" of the text was at the time it was ratified.

Specifically? No, but that is utterly irrellevant. The Canons of Construction, whether you are educated enough or not to accept, were FIRMLY established as the way for Judges to go about interpreting the meaning of legal texts. That was w