Yes, this canon far predated the Constition. Unless otherwise indicated specifically in the text, terms used in laws are to be construed in their generally understood sense. This, like most of the other canons which followed it, are so deeply rooted in common sense, even if they had never been specifically uttered as "canons" (which they have been), most reasonable people would simply do it out of sheer common sense.

It should also be noted that in many of the contemporaneous writings before and during the ratification of the Constitution, when they speak of the "intent" of the legislature or drafters or those who give effect to the law, it is with this rule in mind, that the "intent" is clearly expressed by the LANGUAGE of the statute, quite the opposite of the modern usage of the term, which at times ignores the clear "intent" as expressed in the text of the statute and instead tries to go beyond (and often in contradiction to the actual text) and discover some unexpressed "intent".

No, it is time for you to either bugger off, or start answering questions yourself. What, if not the canons of construction, do YOU believe were the "rules" for interpreting laws when the constitution was ratified. I want specifics, just as I have provided specifics. If you think Blackstone contains it, provide specific quotes from Blackstone which you believe support your position.

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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

When exactly was the Plain Meaning Cannon established and who established 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?

Please explain how the Louisiana purchase and the creation of an Air Force are against the original intent of the constitution?

The Constitution does not grant Congress the authority to establish an Air Force, only an army and navy.

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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?

Have you had any success in determining when exactly the Plain Meaning Cannon was established and who established 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 is the original intent of the framers (as you assert it should be interpreted to mean) and who established it?

The fact that you would ask such a simplistic question demonstrates you have no clue what you are talking about. One determines it through exacting scholarship and research (some more complicated than others).

See the above.

No how about you start demonstrating some actual intelligence and start ANSWERING the same questions about your position that you keep asking of others. Put up or admit you are completely clueless and ignorant of this topic.

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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

He can't, because he doesn't know wtf he is blathering on about...and also because they are not against either the original "intent" or the original understanding.

The Louisana Purchase was a TREATY, and land acquisition was one of the many long-established and perfectly accepted purposes of treaties when the Constituion was written, ergo, the Louisiana purchase was clearly within the Treaty making powers of the federal government.

As for the Air Force, as has been indicated previously is simply a semantic organizational distinction. A long standing principle of jurisprudence is such semantic distinctions if the exact same substantive actions could otherwise be achieved (for example, we could have all the same planes, equipment and personel which comprise the "Air Force" as a division of the Army and/or Navy, hence it is merely an organizational/semantic distinction rather than a substantive one.

The underlying premise of challenging the existence of the Air Force under originalism/textualism is that it confuses this theory of jurisprudence with "strict constructionism", which originalists do NOT hold to. The question before a modern judge vis-a-vis the Air Force would be to determine which of the two possibly relevant clauses of Article 1, Section 8 would control its jurisprudence over the Air Force (the only distinction being that there is a 2-year limitation on appropriations for the Army, but not for the Navy, and this becomes wholly irrelevant given the modern practice of annual appropriation). For the record, I believe that the Air Force should be governed by the principles which cover the Navy in the Constitution (the limitation of duration of appropriations for the Army were based on the founders clear recognition that any prolonged systematic threat of tyranny requires troops, and could not be maintained by a Navy--or an Airforce), although I am open to the argument that the airforce is more akin to a troops with regard to this threat.

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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

Did anyone catch that John Adams special? It showed Ben Franklin, Thomas Jefferson, John Adams, Sam Adams, George Washington, Alexander Hamilton and others. These guys were not portrayed as "Strict Constitutionalists". The series didn't spend too much time on it because it wasn't exactly the point of the whole thing, but it did seem to give us a pretty good idea of the thinking of the founding fathers which was that some principles and some philosophies are so burdened by the truth, that they cannot be overruled. On one hand, they agreed to write that every man is created equal, but they also understood that the newborn nation was nowhere near ready to take a case to court over the abolitions of slavery. There are some keen moments between Adams and Jefferson and Adams' wife when they just know that it's wrong, but that in that precise time it wasn't something that could be brought to the people yet.

Adams and Jefferson clearly were portrayed as having to "let go" of their accomplishments as a new generation and a new age would either build upon their legacy or shred it to bits, or simply retool it. I can't tell if they would have been very fond of those who would look upon the Constitution as though it was a bible that was meant to be taken precisely in the fashion that it was written and including the cultural mores of one specific time. In the series anyway, it appears that the things that are judged to be timeless should remain that way, while amendments ought to be made from the people through their representatives in order to advance freedom and democracy and rights for all.

I'm not so sure where I sit on this one. In terms of judicial philosophy, when a judge brings down an opinion, and it is read by people, it should probably anger the extremes on the right and left because they're never happy when they don't get what they want, and it should leave the middle people just a tad bewildered at how the judgment seems so in the centre that no one can really tell where the judges politics belong.

Scalia's comment about Roe v. Wade was sort of clearly and directly disingenuous when he said he'd refuse to find a constitutional right to life and that was because he was against it or whatever. An earlier poster quoted it better than I. He just had a way of putting it that was so political but not political. Pretty clever guy. But an obfuscator for sure.

Perhaps it would be better if judges were appointed by others in the field of law? Politicians seem to do such a poor job of it. They should all be somewhat like Judge Judy. She's kinda the "white-trash" of judges I suppose, but no politics in the decision is what I mean.

The Supreme Court as it stands right now is fairly politicized. That one judge that Bush Sr. appointed had been "expected" to be very conservative, but once on the bench he frustrated conservatives for voting both ways and often coming right up the middle. That actually made him a good pick because he seems to treat every case on an individual basis whereas we could predict Scalia's votes 99% of the time for the remainder of his life.

Marcus:

If you don't know when the Plain Meaning Cannon was established, how do you know it was actually part of the well established aw of legal instrument interpretation 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?

I see no reason to answer any more of your inane questions until you show some basic class and courtesy and start answering the questions YOU have been asked.

I do not need to defend my knowledge to you, espcecially when you have shown wholesale ignorance in this matter. You have nothing to contribute thusfar to the conversation other than willfully ignorant questions challenging what is basic knowledge to anyone who's ever had a modicum of learning in this area; while at the same time making utterly unsubstantiated assertions and rather hypocritically refusing to answer the very types of questions and challenges to your own positions that characterize your own response to other people's. Time to put up or shut up. Good day to you.

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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 think it is very dangerous to draw such sweeping conclusions based on a T.V. miniseries, based on a book, written by someone with their own political biases.

Take "all men are created equal", the very point is that while many of the founders personally found slavery as an institution to be abhorent and wished to abolish it, NONE of them understood anything in the Constituion as doing that, OR as permitting the courts to do it. What they DID believe was that the government they helped to create would inexorably (through the political processes they specified in the Constitution) lead to the destruction of the institution. I dare you to find a single quote of the founders that any of them though that the Constituion would have empowerd courts to abolish slavery (in the end it was abolished by Constitutional Amendment).

None of the founders envisioned judges imposing their "wisdom" on the people in contradiction to the clear understanding of the Supreme Law of the Land which was given its legal effect by the People, and not the drafters or the courts. What they believed was that society, under the system of government they promulgated, would come in its wisdom to abolish it.

Well, I think it is pretty clear...based on the text of the document (This Constitution...shall be the supreme law of the land), and the fact that they chose to have a WRITTEN Constitution (unlike England) that they intended it to be like a LAW, namely that it has a fixed meaning which does not change merely by virtue of passage of time. There is only one manner proscribed for altering the meaning of that supreme law of the land, by the Amendment process laid out in Article V.

What IS true is that among many of the drafters there was some--often significant--disagreement over what the plain meaning of some parts of the Constitution were; but, none of them believed that whatever that meaning was, that it was fluid. Furthermore, such ambiguity merely moves the foul lines a bit further apart, it does not erase them for judges. Just because there is SOME ambiguity in what was meant by "cruel and unusual punishment" doesn't mean there were NO boundaries clearly understood. Take the death penalty for example. There is no legitimate doubt that the death penalty is anticipated and provided for in the Constituion. There has been no amendment changing that. It is therefor an act of willful disregard of the Supreme Law of the land for the courts to take that decision out of the hands of the people.

This is a dangerous understanding of the role of judges, and one that more than likely projects your view of CURRENT public perception onto precedents as though that is what public perception was at the time. Furthermore, it suggests that public opinion should have something to do with how a judge rules, which is contrary to the very reason they are not elected to their offices.

How was it "clearly and directly disingenuous"? The point he is making every time that I have heard or read him making these comments is that the urge for judicial activism isn't exclusive to the left [however more prominent it may be], that just as he understands as an originalist that the Constiution is utterly silent on abortion rights (thus leaving it to the states and the people to decide), so to is his response to those on the right who would have federal courts create an equally non-existent right to life for the unborn. Unless you are saying that you believe Scalia WOULD ever rule that there is such a right to life in the Constitution, how is it disingenuous?

But your innaccurate understanding of what Scalia says aside, why don't we turn it around. When Roe v. Wade was actually decided, the overwhelming majority of the public was in favor of the very types of legal restrictions on abortion that the court subsequently (and with blindness to history) said were proscribed by the Constitution. The "center" didn't hail Roe v. Wade, only the left did. So by your view, wouldn't Roe have been a bad decision at the time?

Furthermore, whereas Roe imposed a policy on the entire country, overturning Roe would do no such thing. Overturning Roe would not make a single abortion illegal, it would merely return the decision as to whether it SHOULD be legal or not to the people of the states, as it was for nearly 200 years.

The problem is that you are readin politics INTO the decisions, but rather dually . As Scalia once remarked with regard to his voting to find that Flag Burning is constitutionally protected speech ('if it were up to me, I'd through the long-haired, unwashed, sandle-wearing hippies in jail, but it isn't up to me').

You reveal yourself my friend. The only two judges you could possibly be referring to are Thomas and Souter, and I am all but metaphysically certain that you do not mean Thomas. To describe Souter as "boting both ways" is ridiculous. Souter has voted "left" more often during than any justices other than Ginsburg or Stevens.

First of all, 90% of the courts rulings are utterly uncontroversial and not even close. It is the small percentage where the court IS relatively split that get all the attention, and it is usually through a bretty foggy media filter.

Take Bush v. Gore, people keep referring to it as a 5-4 decision, only the centrail holding, that the actions of the Florida Supreme Court violated the Equal Protection clause of the constitution was far from that, it was actually a 7-2 holding. The 5-4 split was on the remedy available. Care to guess who was one of the 2? It was your man Souter.

Furthermore, the fact that you single out Scalia as your whipping boy, while ignoring equally...if not even more consistently "political" rulings of some of the "left" wing Judges shows that you yourself tend to be the one politicizing it.


I have long argued that it is no less legitimate to "interpret" the equal protection clause as to invalidated the progressive income tax (it clearly has the support of the people based on all polling on flat taxes, and has no less historical basis than gay marriage does..which has been justified under that clause); and, while I would wholeheartedly support such a POLICY, I would be incredibly critical of any judge who would make such a baseless ruling.

While it is true that originalism does yield results that are more to the liking of the right than the left rather consistently, that is because most of the decisions the left likes:

1. Are not supported by anything in the text of the Constitution, or the history and traditions of our society (and are often contrary to any or all of those things)
2. More often than not overturn the popularly expressed will of the people through their democratically elected representatives, and in a manner which forever (so long as the decision stands) removes what had historically been a political decision of the people through their representatives.

Now, I would be happy to discuss the general rules of interpretation that Scalia, like a good originalist employs, and perhaps you could tell me which of them IN PRINCIPLE you disagree with. Because the LAST thing we should want is a legal landscape where judges decide what they think is the "fair" outcome, and then contort the standards and principles to arrive at that outcome in a particular case, only to have to subsequently abandon or further contort those same standards and principles in the next case when the rule they made up to achieve the desired outcome in the last case would result in an outcome they do not like in the following.

Classic example of this is in the abortion/sodomy cases. Some yeras ago, the court issued a ruling where the majority even acknowledged that Roe was probably wrongly decided, but that the principle of Stare Decisis, coupled with wanting to avoid the appearance of succumbing to puplic pressure counsled against overturning it. That same court issued a ruling that their own precedent which had upheld anti-sodomy statutes, and citing public opinion/pressure as a reason for doing so. Scalia rightly dissented in the both cases, and in the later remarked that a judge should apply stare decisis to stare decisis, meaning if factor x is dispositive in one case to justify invoking stare decisis, it should be consistently applied in future cases.

The same applies to the new favorite tool of those who would ignore the will of the people as expressed in the Constitution...the use of foreign legal opinions in the interpretation of U.S. statutes and Constituion. While readily citing foreign court opinions, members of the current court justify ever increasing restrictions (and clearly heading towards judicial abolition of) the death penalty. Meanwhile, the courts of those very same countries have far less stringent abortion rights rulings, but those same justices suddenly do not see foreign court rulings as dispositive in the abortion cases.

Scalia rightly rejects out of hand the use of such foreign legal opinion in the interpretation of the U.S. Constituion (with the exception of Old English Common law to the extent it shed light on the original understanding of terms in the Constitution lifted from it), dismissing it is merely another disingenuous tool of those who wish to rewrite the laws of our land, rather than apply them. He said it nicely: "I will become a believer in the ingenuousness - though never in the propriety - of the Court's newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases."

Lastly...for now...I think you will find that every bit of your criticism of Scalia is based not on reasoned critique his express philosophy (which he more than any other justice has articulated and adheres to consistently), but rather on your own political view of the outcomes he reaches, with little or no regard to the legitimacy of the reasoning behind it.

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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

Since you don't know when the Plain Meaning Cannon was actually established, we shouldn't assume it was actually part of the well established aw of legal instrument interpretation at the time the Constitution was made? Don't you agree?

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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?

That is a non sequitor. That I do not have the precise date in history that the plain meaning cannon was first adopted (as we do not really have for any of the cannons as they are all pretty old) it does not follow logically that I cannot know that they already existed at any arbitrarily selected date well after they existed.

I don't recall the exact date the Constituion was ratified, but it would not be "logical" for you to conclude that we can't "assume" (another false assumtion" that it was not written ratified before I was born.

The plain meaning rule was a feature of English Common Law. That YOU are ignorant of that fact doesn't alter the fact that it is true.

I will not be replying to you again until you list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

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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

Since we can't establish that the "plain meaning" rule of construction was actually established prior to the making of the United States Constitution in 1788, don't you think we should exclude it from the rules of construction we use to ascertain the will of the lawmakers at the time when they made the Constitution. Don't you also think that we should use only those rules of construction that we know for certain were actually part and parcel of the law of legal instrument interpretation at the time the Constitution was made? The lawmakers couldn't possibly have "kept an eye on" a rule that didn't even exist at the time they decided what words to use in the Constitution.

Would you please ascertain whether all of the other rules you're in favor of using to interpret the Constitution actually existed at the time when the Constitution was being made? Frankly, I thought you had already done that, Marcus.....

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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?

I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!


I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!


I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!


I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!


I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!


I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!


I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!


I will not be answering any more of your questions until you answer every question I have asked you, including to list specific citations from Blackstone supporting your view that it is a general guide for the interpretation of legal texts.

Time to PUT UP OR SHUT UP!