The words of the Constitution were what the lawmakers used to express their will at the time they made the documents. Therefore, the object and goal of Constitutional Interpretation should be the will of the lawmakers, not some unknowable "general understanding" that scum bags like Scalia use as an excuse to inject their personal views into the Constitution.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

What gives the force of law to the Constitution? The fact that it was written, or that it was ratified by We the People?

The writers and whatever their multitude of intentions were have NO legal relevance, what gives the Constitution effect is the will of the people, ergo what THEY generally understood it to mean.

You have proven yourself to be completely ignorant of anything and everything to do with legal history. Your derogatory and childish reference to a man far more educated than yourself as a "scumbag" shall mark the end of any further responses to your stupidity until you start presenting substantive references that you believe support your position. The reason you resorted to such sophistry is because you cannot do so.

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"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

The Constitution wasn't ratified by the people, dude. It was ratified in the name of the people, by their elected representatives.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

What was the well established law of legal instrument interpretation when the Constitution was made?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

You got one right.

You need to learn what the well established law regarding the interpretation of laws was when the Constitution was made.

Have you found Blackstone's writings on the interpretation of laws yet?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

The Constitution derives its legal validity from THE PEOPLE. The elected representatives (and not the drafters by the way) were representing THE PEOPLE, and not exercising independent power or authority.

"WE THE PEOPLE of the United States...."

The Canons of Construction, which is what I have told you over, and over, and over again.

The GOAL of interpretation of a legal text should be to ascertain what it was generally understood to mean at the time it was given effect. The Canons of Construction are a series of long-established (well before the drafting of the constitution) guidelines, rules, and principles developed to aid judges in that pursuit.

Blackstone was not a treatise on how to interpret legal texts, it was a collection of commentaries on what constituted English Common Law (laregly viewed as the most comprehensive written collection of English Common Law at the time). It is a very useful tool for someone trying to ascertain what those phrases and concepts incorporated into the Constitution FROM English Common Law were generally understood to mean at the time. For example, "Cruel and Unusual Punishment" was not a concept invented for the Constitution, it was something drawn from English Common Law. Ergo, if a judge is trying to ascertain what that phrase was generally understood to mean at the time it was put into the Constitution and ratified, Blackstone is an excellent resource for that.

If however, a Judge is trying to ascertain what 16th Amendment's "incomes" was generally understood to mean, Blackstone would be far less useful as it is not neccesarily the English Common law meaning that was generally held to be the meaning of the term when it was ratified in the 16th Amendment.

The reason "intent of the lawmaker" is a bad standard is that it is the text, not the "intent" of the lawmaker that has force of law, it is the actual text they use, which governs the people. Originalism as Textualism is subtly, yet significantly different. It has been described as:

This is derivative of the most basic of the Canons of Construction, with much of the rest of the canons being rules which have been honed to achieve this purpose.

A great example of this was a case I have previously mentioned in which a statute provided for stiffer sentencing for any crime where a gun was used. The case before the court featured a defendant who had been convicted of a drug offense, and had additional time added to his sentence under the statute because he had traded an unloaded gun for the drugs. The majority upheld the additional sentence. Scalia, on the other hand, in his dissent, that the reasonable understanding of "use a gun" was in using it for its designed purpose, as a weapon; and not, as was the fact in this case, as a medium of exchange. Scalia pointed out that when the average person asks if you "use a cane", they are not inquiring whether or not you happen to "use" your grandfather's antique cane as a decorative piece in your hallway.

As Scalia himself says, a legal text should neither as a rule be construed "strictly" or "broadly", it should be interpreted "reasonably" (meaning as the reasonable person being governed by it would understand it to mean).

Another practical problem with "original intent", is that it more often than not manifests itself in a jurist selecting ONE of the intents and elevating it above all others in a way which obliterates what more often than not is a carefully crafted BALANCE of objectives. For example, a relatively recent worker's discrimination suit where the statute provided a statute of limitations from the original act of discrimination were the dissenters interpreted in such a manner as to eliminate the limitations explicitly provided for in the statute in practically any forseable situation. Their reasoning was that the "intent" of the statute was to permit people who had been discriminated against to sue, and that in the case before them any interpretation other than the one they were applying would have meant the party could not, ergo the original "intent" meant that the limitation did not apply, even though it was clearly and deliberately INCLUDED in the text of the statute.

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"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

Well, that would be an accurate statement under a strict constructionist view (as I did get one right), but very misleading in that I have actually gotten ALOT right (not merely one). ;-)

I do, they are known collectively as the Canons of Construction, you are utterly ignorant on this point.

But if you believe you know so much, please give specific citations to what YOU believe the "well established law regarding the interpretation of law when the Constitution was made" is. Give a specific quote that supports your view.

Well, if you mean Blackstone's Commentaries on the Laws of England, it wasn't hard as I have a printed copy on the second to top shelf of the third bookcase from the left in my study. However, Blackstone is not, as you keep mischaracterizing it, is NOT writings on INTERPRETATION of laws in general, but rather a comprehensive analysis of the LAWS OF ENGLAND specifically as of the time he wrote them. There is a fundamental distinction (which you are seemingly intellectually incapable of making) between AN interpretation of a specific legal text and a METHOD of interpretation of legal texts generally. Blackstone is the former, not the later (although his commentaries UTILIZE the later...namely the canons of construction...to arrive at his former).

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"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

By George, I think you've got it.....

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

What exactly were the "Canons of Construction" at the time the Constitution was made?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

You mean YOU'VE got it, as it means that it is the original understanding of those who gave the law effect (in the case of the Constitution "We the People of the United States") and not the original "intent" of those who wrote or voted on it proceedurally.

Well, let me refer you back to post #34, which--although by no means exhaustive--covers all of the major canons as they have been practiced for well over 400 years

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"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

I just want the "cannons of construction" that you believe prevailed at the time the Constitution was made.

The Plain Meaning Rule was not even adopted until the mid 1800's, Marcus. I want the "rules of construction" that you believe existed in the late 1700's when the Constitution was made, and I want them in the form, that is to say in the words, they existed, at that time. I want to compare what you believe the rules were to what I believe they were...

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

What was the well established law or rule, in the late 1700's, regarding whose will, intent or understanding was the primary or proper goal or object of the interpretation of a legal instrument?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

And I have provided them. If you disagree, please specifically cite what you believe DID prevail at the time. Put up or shut up.

The plain meaning rule is among the oldest of the canons, predating the founding of the Republic by over two centuries (if not longer) at least to the mid-1500's

I h ave provided mine ad naseum, you have failed to do so. Time to put up or shut up.

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"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

I will not answer any more of your inane questions until you provide a specific list of what YOU believe where the rules were. Put up or shut up.

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"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

Very well. Let's take a closer look at the "cannons of construction" you claim prevailed at the time the Constitution was made. First up is the Plain Meaning rule. Here's what you posted.

Plain Meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. U.S., 242 U.S. 470 (1917), reasoning "t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."

Are you claiming that the above rule was law at the time the Constitution was made?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?