The 'intension' of any idea consists in the qualities or properties that are the substance[1] of the idea. See the first part in this series. For example, the Constitution, Article. I.Section. 1. states that "All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of a
Senate and House of Representatives." Taken in its entirety, the 'substance' of the Section is legislative powers, and what they shall be vested in.
Any 'extension' of an idea is dependent on the 'intension' for its substance. Section 2. states, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States," and in the substance of that there is no 'extension' of any idea that those elected cannot be women or blacks--nor, for that matter, Catholics or Muslims or "Hindoos", as Thomas Jefferson spelled it.
So for all practical purposes, 'intension' is the same as someone's 'intentions'; it merely has a semantic difference in the way philosophers of law use the word. The intension is necessarily in the words and syntax, if you are a textualist (also called a constructionist, from the 'construction' of the clauses and sentences.)
If you are an originalist, the intension is more likely to be in the meaning of those words and that syntax as they were meant when the text was written. That is called original expected application. If on the other hand you are of the belief that the intension should be based on what reasonable persons living at the time of its adoption would have said was the meaning, that is called original public meaning. The problem between these forms of originalism is that the writers of the Constitution, and those who took part in the debates, wrote extensively both before and after it was written. If you read what they wrote and you abide by what they wrote, you might be adopting original application, or you might be following the original public meaning. Reasonable persons living at the time were very well versed in what their intellectuals had to say. And many of those intellectuals said the intension was in the text, so that textualism and both forms of originalism melt into one when we try to interpret the Constitution.
"Originalism tends to favor a narrower definition of civil liberties than
modernism does, so it generally permits more authoritarian laws," states a popular website. Obviously this is wrong, because the entire purpose of the Constitution was the promotion of the 'general Welfare' without infringing upon what all 'reasonable persons at the time' believed was the individual sovereignty of the individual. But it may be a common belief because since the time of at least the New Deal, Americans have been taught by their leaders that our Constitution was meant to guarantee 'positive' rights, that is grants, the creation of what does not exist under natural law; in other words, entitlements, not just of money, but of 'social justice'.
The belief in individual sovereignty was not a 'peculiar conceit' of Thomas Jefferson; rather, it was "the common assumption of the day." Jefferson himself has often been described as a strict constructionist, yet his thoughts on the proposed and real extensions of his time are used by originalists of both types, and by textualists.
It is true that individual sovereignty was commonly acknowledged. Sam Adams wrote that he feared misinterpretation of the Constitution would grow the power of the Federal government at the expense of the States
and "sink both in despotism." "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone,
"who argued most strongly for the Bill of Rights, knew that the
individual would require defenses against the authority of the state."
Positive rights are extensions of the Constitution if you interpret it as a 'living document', meant to be read in the context of a modern world. Even then, you must ignore what those who lived during that period knew was the intent of the Framers--because the Framers told them their intent.
The only 'modern' part of the extensions since the New Deal (and some before that) is the loss of individualism in favor of authoritarianism, not the reverse as the quote above states.
[1] that by virtue of which a thing has its determinate nature source
© Curtis Edward Clark 2012
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Showing posts with label original expected application. Show all posts
Showing posts with label original expected application. Show all posts
Thursday, August 2, 2012
Monday, May 2, 2011
Health Care and the Supremacy Clause
"State governments are pushing back reasserting federalism as the Founders intended them to do," said the Attorney General of Virginia, Ken Cuccinelli."Virginia was the first state to argue in federal court that the new health car law is unconstitutional.....[A] legal expert said our case relied on a 'controversial reading of the Constitution.' Apparently it is controversial to apply the Constitution as it was written." [1]
The Constitutional Accountability Center [CAC], which believes in a 'Progressive Constitution', said in its blog that this push-back whereby States' "claims that federal health care reform violates the Constitution’s 10th Amendment and 'states’ rights' rely on an inaccurate view of the federal government as a weak, sharply limited central government."[2]
To view the federal government as anything but a "sharply limited central government" may not stand up against court precedent. But precedent is not what is paramount here, because precedent is nothing but interpretations by judges who may discount original expected application, and who obviously were not there to comprehend from a first-person memory what the application was supposed to be. At the start of the current Congress, Justice Antonin Scalia reminded the House Republicans to read and understand the Federalist Papers.
Original "meaning" refers in most recent writings to the meaning of the words as they were used when the Constitution was written; but meanings of words change. Where we say "judge", people in the 18th century often said "jurist", but to us in this century a "jurist" is taken to be someone who sits in the jury box. It isn't the meaning of the words as we understand them that is important; but that is what progressive readers of the Constitution use--their own understanding of the words as they wish them to be used today.
"Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application."[3]
As I wrote on April 29, Tibor Machan, referring to another author, said this is "stating conventional wisdom in the 'post-New Deal era'" of constitutional jurisprudence. "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[4]
But there is also more going on here. "[I]n circumstances in which a national approach is necessary or preferable," the CAC continues, "the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal."
Who determines when a "national approach" is "preferable" if it is not the States? It is circular thinking to say that, when the federal government was created by the States to serve them, that that servant should then decide when it may preempt the very States' laws they use under the powers of the Constitution as each State sees fit. Who determines a "national goal" if not the nation made of sovereign States who protect sovereign individuals?
This arrogance in 'preempting state law when necessary' is created by "the 'illusion' [that] the heart of Jeffersonian government is just American individualism!....Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...."[5]
Indeed. Much of the Tea Party is founded or supported by libertarians and independents, who were inspired by the ideas of Ayn Rand, who echoed the Founders:
"Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members."[6]
The Supremacy Clause says, in part that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof....shall be the supreme Law of the Land...." But it says nothing about laws made in pursuance of the Constitution being lawful just because a particular group of individuals who have gained supremacy says every law they deign to write is "necessary to achieve a national goal."
It is only necessary to achieve their goals that they have their sights set on a 'progressive Constitution' that allows for the use of modern definitions of 18th century words, rather than 21st century interpretations of original expected application.
But it is my opinion that the Tea Party often does little better, or none at all, or perhaps worse at time--when it decides to stand up for a perceived principle that is no principle at all. A perfect example is the call for 'smaller government' through limited budgets, rather than limited budgets through original Constitutional intent. Fiscal conservatism is not necessarily Constitutionalism.
I have always said that the government must as large as it must be, and only as large as is Constitutional. The Framers didn't want a standing army; but those were there original "meanings"; their expected application was never to allow our nation to be exposed to the kinds of world-wide threats the kinds of which they had no conception.
Health care, on the other hand, ought to be handled by anyone with the authority to do so, and the Supremacy Clause does not allow for the federal government to do so.
[1] April 21, 2011 lecture sponsored by Hillsdale College's Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. Imprimis; April 2011 Volume 40, Number 4
[2] CAC July 27, 2010
[3] Jack Balkin; Balkinization
[4] Tibor Machan
[5] Kelly R. Ross
[6] The Ayn Rand Lexicon; The Virtue of Selfishness
The Constitutional Accountability Center [CAC], which believes in a 'Progressive Constitution', said in its blog that this push-back whereby States' "claims that federal health care reform violates the Constitution’s 10th Amendment and 'states’ rights' rely on an inaccurate view of the federal government as a weak, sharply limited central government."[2]
To view the federal government as anything but a "sharply limited central government" may not stand up against court precedent. But precedent is not what is paramount here, because precedent is nothing but interpretations by judges who may discount original expected application, and who obviously were not there to comprehend from a first-person memory what the application was supposed to be. At the start of the current Congress, Justice Antonin Scalia reminded the House Republicans to read and understand the Federalist Papers.
Original "meaning" refers in most recent writings to the meaning of the words as they were used when the Constitution was written; but meanings of words change. Where we say "judge", people in the 18th century often said "jurist", but to us in this century a "jurist" is taken to be someone who sits in the jury box. It isn't the meaning of the words as we understand them that is important; but that is what progressive readers of the Constitution use--their own understanding of the words as they wish them to be used today.
"Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application."[3]
As I wrote on April 29, Tibor Machan, referring to another author, said this is "stating conventional wisdom in the 'post-New Deal era'" of constitutional jurisprudence. "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[4]
But there is also more going on here. "[I]n circumstances in which a national approach is necessary or preferable," the CAC continues, "the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal."
Who determines when a "national approach" is "preferable" if it is not the States? It is circular thinking to say that, when the federal government was created by the States to serve them, that that servant should then decide when it may preempt the very States' laws they use under the powers of the Constitution as each State sees fit. Who determines a "national goal" if not the nation made of sovereign States who protect sovereign individuals?
This arrogance in 'preempting state law when necessary' is created by "the 'illusion' [that] the heart of Jeffersonian government is just American individualism!....Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...."[5]
Indeed. Much of the Tea Party is founded or supported by libertarians and independents, who were inspired by the ideas of Ayn Rand, who echoed the Founders:
"Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members."[6]
The Supremacy Clause says, in part that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof....shall be the supreme Law of the Land...." But it says nothing about laws made in pursuance of the Constitution being lawful just because a particular group of individuals who have gained supremacy says every law they deign to write is "necessary to achieve a national goal."
It is only necessary to achieve their goals that they have their sights set on a 'progressive Constitution' that allows for the use of modern definitions of 18th century words, rather than 21st century interpretations of original expected application.
But it is my opinion that the Tea Party often does little better, or none at all, or perhaps worse at time--when it decides to stand up for a perceived principle that is no principle at all. A perfect example is the call for 'smaller government' through limited budgets, rather than limited budgets through original Constitutional intent. Fiscal conservatism is not necessarily Constitutionalism.
I have always said that the government must as large as it must be, and only as large as is Constitutional. The Framers didn't want a standing army; but those were there original "meanings"; their expected application was never to allow our nation to be exposed to the kinds of world-wide threats the kinds of which they had no conception.
Health care, on the other hand, ought to be handled by anyone with the authority to do so, and the Supremacy Clause does not allow for the federal government to do so.
[1] April 21, 2011 lecture sponsored by Hillsdale College's Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. Imprimis; April 2011 Volume 40, Number 4
[2] CAC July 27, 2010
[3] Jack Balkin; Balkinization
[4] Tibor Machan
[5] Kelly R. Ross
[6] The Ayn Rand Lexicon; The Virtue of Selfishness
© Curtis Edward Clark 2011
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Friday, April 1, 2011
Two Ways to Read With 'Original Intent'
Monday I wrote, "There is a world of difference between 'original meaning' and 'original intent'. Until recently I was consciously unaware of the difference, though I kept running into descriptions of Originalism that seemed to contradict each other, and I didn't know why.
We Originalists think the correct way of reading the Constitution is to ask what the Founders meant. But there are two versions of what they meant. There is the 'literal' reading, whereby "an historical literalist will see the militia [just as an example] of the 2nd Amendment as referring to all able-bodied men from 17 to 45, just as in the late 18th century."[1]
But the Militia Act of 1903 designated the National Guard, (Organized Militia), as the nation's primary military reserve. But the 'militia' of men 17-45 was created by the Militia Act of 1792, five years after the creation of the Constitution. In 1787, the 'militia' was the entire body of civilians physically fit for military service and who wanted to volunteer. The Second Militia Act of 1792 (there were two) created the draft. So who and what are the independent militia of today, those people who store weapons and train for the day the U.S. is overrun by enemies, or for the day the Feds become the enemy?
In 2010 the Supreme Court ruled they were individuals, whose right to bear arms applies to state and local gun control laws. Two years earlier the Court, in the the Heller case, addressed only federal laws. But the rulings only address private ownership in a household; they do not address what particular laws may redress local and State needs for some controls; that issue was sent back to the lower courts to decide.
Problems with Originalist readings come in several forms:
A) do we understand the written document as the Framers understood it--in their terms? For example, the right to bear arms could not have meant an Uzi or an M11 machine gun, if they knew of such things?
B) Since they did not know of such things, how do we know what they would have said once they were told? Alexander Hamilton said in 1788, four years before the first Militia Act by Congress, that if "circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."[2]
Thus, by the words of the strongest Federalist Founder who sought to expand government powers, "the body of citizens" should be only little inferior, if any at all, to the powers of any government army who might then be able to be used against them. But Hamilton could not foresee rocket launchers and surface-to-air and cruise missiles.
C) And so, if we are not meant to understand the written document as the they understood it in their frame of reference to the specifics of their existence at that time, then we must find in their other writings what they meant in principle.
Jack M. Balkin[3] argues "that constitutional interpretation requires fidelity to original public meaning but not to original expected application. Original public meaning is what the words used meant to competent speakers of the language in the relevant political community at the time of adoption. Original expected application is how people at the time expected those words would be applied to concrete situations in their world. Original public meaning is a proper object of constitutional fidelity, while original expected application is not. . .
"For example, the ban on 'cruel and unusual punishments' requires us to decide today how we should apply the original public meanings of the words "cruel and unusual." It does not require us to follow how people in 1791 would have applied the concepts of "cruel and unusual."
Originalism, then, is not so specifically about how Jefferson or Madison or Patrick Henry would have applied their idea to our modern problems; that is what is called 'original expected application'.
Rather, we need to understand the contextual and common meaning of the words the Founders used, and apply those meanings, whether the meanings have changed or not, whether we now use different words or not. We need to understand the intent of what they said, called 'original public meaning', and apply that as the Founders' 'original intent'.
© Curtis Edward Clark 2011
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We Originalists think the correct way of reading the Constitution is to ask what the Founders meant. But there are two versions of what they meant. There is the 'literal' reading, whereby "an historical literalist will see the militia [just as an example] of the 2nd Amendment as referring to all able-bodied men from 17 to 45, just as in the late 18th century."[1]
But the Militia Act of 1903 designated the National Guard, (Organized Militia), as the nation's primary military reserve. But the 'militia' of men 17-45 was created by the Militia Act of 1792, five years after the creation of the Constitution. In 1787, the 'militia' was the entire body of civilians physically fit for military service and who wanted to volunteer. The Second Militia Act of 1792 (there were two) created the draft. So who and what are the independent militia of today, those people who store weapons and train for the day the U.S. is overrun by enemies, or for the day the Feds become the enemy?
In 2010 the Supreme Court ruled they were individuals, whose right to bear arms applies to state and local gun control laws. Two years earlier the Court, in the the Heller case, addressed only federal laws. But the rulings only address private ownership in a household; they do not address what particular laws may redress local and State needs for some controls; that issue was sent back to the lower courts to decide.
Problems with Originalist readings come in several forms:
A) do we understand the written document as the Framers understood it--in their terms? For example, the right to bear arms could not have meant an Uzi or an M11 machine gun, if they knew of such things?
B) Since they did not know of such things, how do we know what they would have said once they were told? Alexander Hamilton said in 1788, four years before the first Militia Act by Congress, that if "circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."[2]
Thus, by the words of the strongest Federalist Founder who sought to expand government powers, "the body of citizens" should be only little inferior, if any at all, to the powers of any government army who might then be able to be used against them. But Hamilton could not foresee rocket launchers and surface-to-air and cruise missiles.
C) And so, if we are not meant to understand the written document as the they understood it in their frame of reference to the specifics of their existence at that time, then we must find in their other writings what they meant in principle.
Jack M. Balkin[3] argues "that constitutional interpretation requires fidelity to original public meaning but not to original expected application. Original public meaning is what the words used meant to competent speakers of the language in the relevant political community at the time of adoption. Original expected application is how people at the time expected those words would be applied to concrete situations in their world. Original public meaning is a proper object of constitutional fidelity, while original expected application is not. . .
"For example, the ban on 'cruel and unusual punishments' requires us to decide today how we should apply the original public meanings of the words "cruel and unusual." It does not require us to follow how people in 1791 would have applied the concepts of "cruel and unusual."
Originalism, then, is not so specifically about how Jefferson or Madison or Patrick Henry would have applied their idea to our modern problems; that is what is called 'original expected application'.
Rather, we need to understand the contextual and common meaning of the words the Founders used, and apply those meanings, whether the meanings have changed or not, whether we now use different words or not. We need to understand the intent of what they said, called 'original public meaning', and apply that as the Founders' 'original intent'.
[1] http://www.usconstitution.net/consttop_intr.html
[2] Federalist, No. 29
[3] Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment, Yale Law School© Curtis Edward Clark 2011
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