Scalia and Judicial Originalism

February 20th, 2011

By Tom Carter

As I noted earlier, Ruben Bolling’s political cartoon “Tom the Dancing Bug” is often so obscure and convoluted that it’s not funny or even understandable.  But once in a while, like the old joke about crossing a donkey with an onion, you get ….*  Here’s his view of Justice Antonin Scalia’s beliefs about judicial originalism:

*If you don’t know the punchline for the donkey and onion joke, you can read it here.  It’s not family friendly….


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6 Responses to “Scalia and Judicial Originalism”



  1. larry ennis |

    Tom
    I’m at a loss to see what the Scalia bit has to do with our current woes.
    As to the Constitutional questions raised by the cartoon. The main purpose if not the sole purpose of the Supreme Court is to interpret the Constitution in a fair and concise manner. It is not the job or right of the Court to make laws.
    I’m not a Constitutional scholar by any stretch but I’ve read most of it. Does the document sight any groups to be excluded from protection by the law?


  2. Brian |

    Tom, it isn’t difficult to figure out original intent. Madison, Hamilton, and Jay wrote extensively on the “whys” of the constitution.

    Original intent was…where the constitution is silent, the 9th and 10th amendments apply. If the constitution needs to “change with the times,” Article V should be invoked. There isn’t, or shouldn’t be, any room for justices to create new powers or to expand beyond what had been largely settled jurisprudence up through the 1930s.

    I’ll give an example of what has happened because of a change in vernacular that has made 1 part of the constitution open for debate. “A well regulated militia…” The phrase “well regulated” is not as we commonly understand “regulated.” It’s meaning in the constitution is “well-trained.” In spite of what you may wish for, that amendment exists. No, they didn’t foresee machine guns and so forth, but that’s beside the point. The intent of that amendment is quite clear. If it needs to “change with the times,” then invoke Article V. I’ll fight you tooth and nail on it, but that’s the frame-work that we have to work with. Anything else is a usurpation.


  3. Brian |

    Another thought occurred to me. I read somewhere recently (don’t remember where) how the Taney court was in error on Dred Scott. Whether or not Taney and the rest of the justices approved of slavery or disapproved of it, it wasn’t their place to inflict their personal feelings on the matter, to create an atmosphere of “social justice.”

    And if you stop and think about it, that sort of thinking falls appropriately under “the divine right of kings” – ruling as they saw fit and not being bound by anything higher than they are.


  4. Tom Carter |

    The problem with “strict constructionism” and “originalism” is that over two centuries of history and technological development have happened since the Constitution was written and since The Federalist Papers were written.

    On the Second Amendment, I agree that it provides for individual ownership of firearms, although, as we well know, significant limitations on that right are acceptable and have long existed. Don’t you think, though, just possibly, the Framers might have had second thoughts if they could have seen the way our country is now, awash in high-capacity, rapid-fire handguns and with a murder rate that leads the developed world?

    The Fourteenth Amendment very clearly applies to “any person.” How could that possibly, under any interpretation, not include women and gays? Unless we want to deny that they are “persons.” Bolling is exaggerating to make a point, and I seriously doubt that Justice Scalia thinks that way. Unfortunately, there are people in the country who do.

    Amending the Constitution (Article V) is a valid recourse when needed. Thankfully, we haven’t used it much. All you have to do is look at some state constitutions to see the havoc that can result from too-frequent amendment.

    Here’s the reality: When a decision goes the way we want it to, no problem — there’s a judge who knows what he’s doing. When it doesn’t, there’s an example of judicial activism, legislating from the bench, re-writing the Constitution, etc. Judges have the difficult job of trying to square a document written over 200 years ago, based on the knowledge and understanding of that time, with modern conditions. Sometimes they get it right and sometimes they get it wrong, but that’s just my opinion.


  5. Brian |

    On the Second Amendment, I agree that it provides for individual ownership of firearms, although, as we well know, significant limitations on that right are acceptable and have long existed.

    No, only since NFA of 1934, which should have been overturned in the Miller case in 1939 but for some unrebutted monumental lies, in front of the USSC, by an assistant US attorney.

    …When it doesn’t, there’s an example of judicial activism, legislating from the bench, re-writing the Constitution, etc.

    Only if one so loosely defines the term “judicial activism” so as to reduce it to meaninglessness (is that even word???). A perfect example of the bastardization of this phrase is Judge Vinson’s decision a couple weeks ago. He gutted legislation that had no constitutional backing. That’s not activism, that’s one of the things that federal judges are supposed to do.


  6. Tom Carter |

    Brian, we’ve been around the bush on U.S. v Miller before. Regardless of whether someone lied or misled a court about a sawed-off shotgun being a military weapon, lots of other categories of weapons were regulated as well. Subsequent law and court decisions didn’t go the other direction. The case remains controversial because neither Miller nor his attorneys showed up at the Supreme Court to argue the case, and it was never taken up again by the district court after the Supreme Court sent it back down because by then Miller himself had been shot to death (poetic justice, I guess). Bottom line, there’s no logical support for your argument that everything would be different if only Miller had been overturned more than 70 years ago.

    The NFA and subsequent laws and court decisions over the years have continued to regulate/restrict weapons such as machine guns, sawed-off shotguns, most firearms over .50 caliber, silencers, grenades, bombs, missiles, poison gas, and others. Maybe it’s just me, but I’m happy to know that every gun nut out there isn’t carrying grenades and an M-60 in his pick-up, in addition to the standard couple of pistols and a rifle or shotgun. And by the way, the NFA originally included handguns, but it passed without them included. Too bad.

    Personally, I agree with the Supreme Court that the Second Amendment guarantees the individual right to keep and bear arms. I also understand that it is firmly established that firearms can be restricted, regulated, and prohibited. I wish that applied much more strongly to handguns.

    The terms “judicial activism” and “strict constructionism” are, in fact, meaningless. On the “individual mandate” cases, for example, four district judges have taken it up; the results are two for it, two against it. Liberals consider Judge Vinson’s decision to be rogue judicial activism by a Republican judge; conservatives think the decision is “one of the things that federal judges are supposed to do.” Q.E.D.

    My opinion is that the individual mandate is unconstitutional, removing it makes the law unworkable, and therefore the whole thing is unconstitutional. I agree with Vinson — this time. Next time, I’ll probably skewer him for legislating from the bench.


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