Do you think that the Constitution of the United States needs to be tweaked? Watch

Jiorgianna
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I think that we know that the Constitution for the US wasnt made for us black folks, what do you think about it
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freddiesehgal02
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well the whole point of it is that, regardless of the conditions or the intentions of the people at the time, it is supposed to transcend all of that and be for all humanity. I dunno whether it fulfils that ambition, but you can never understand it from a racial perspective tbh
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Napp
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As with any document it should be adjusted over time as societal norms and conditions change. With that being said it is adjusted, whether the degree of change is enough is another matter though.

And on your "black folks" comment - how exactly does it discriminate against you, in your view?
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AngeloR
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I don't think anyone disputes that a document should be subject to change. Amendments are part of the Constitution- if anything, I would say that the Reconstruction (13-15th) Amendments were passed with specifically African-Americans in mind.

The contentious issue is rather who should have the power to adjust the document. Article V lays out specific procedures for doing so. What about judges? Or can the language of a document change without the intervention of judges?
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NYU℠
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(Original post by AngeloR)
I don't think anyone disputes that a document should be subject to change. Amendments are part of the Constitution- if anything, I would say that the Reconstruction (13-15th) Amendments were passed with specifically African-Americans in mind.

The contentious issue is rather who should have the power to adjust the document. Article V lays out specific procedures for doing so. What about judges? Or can the language of a document change without the intervention of judges?
A judge isn’t changing the language of the document, only interpreting it; and interpretations are historically specific — as opinions and politics change, so will some understandings about the rights, instutions or structures.

Example: Before the mid 20th century, the first amendment free speech clause meant only that prior restraint was prohibited. You could say what you wanted, and the government had huge leeway in prosecuting you for it. Examples, seditious speech, inflammatory speech. Today, the first amendment prohibits criminal prosecution for most speech. And, the first amendment was never amended or new legislation passed. The interpretation of the speech clause simply became significantly more expansive. Historically speaking, it’s an interesting transition that started with Brandies’ concurrence, which was actually a dissent, in Whitney v. California (1927), which was overturned by Brandenburg v. Ohio (1969), which adoptee Brandies’ opinion from Whitney as the appropriate standard.
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AngeloR
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(Original post by NYU2012)
A judge isn’t changing the language of the document, only interpreting it; and interpretations are historically specific — as opinions and politics change, so will some understandings about the rights, instutions or structures.

Example: Before the mid 20th century, the first amendment free speech clause meant only that prior restraint was prohibited. You could say what you wanted, and the government had huge leeway in prosecuting you for it. Examples, seditious speech, inflammatory speech. Today, the first amendment prohibits criminal prosecution for most speech. And, the first amendment was never amended or new legislation passed. The interpretation of the speech clause simply became significantly more expansive. Historically speaking, it’s an interesting transition that started with Brandies’ concurrence, which was actually a dissent, in Whitney v. California (1927), which was overturned by Brandenburg v. Ohio (1969), which adoptee Brandies’ opinion from Whitney as the appropriate standard.
You have argued for the view that judges do change the language of the Constitution. You have said that an "interesting transition" occurred after Brandies' concurrence. That certainly sounds like change.

Ronald Dworkin argues for a constructive view. But, at least in my view, the meaning of language cannot change independent of a speaker's intent. For example, consider what it would mean to take someone's words out of context. I argue that if you misquote me (or take my words out of context), it doesn't alter the actual meaning of my statements, which were made at the time they were said.

For the sake of argument, lets say that I accept your view that social circumstances alters meaning (the meaning changes based on societal opinion). First, doesn't that seem in tension with the fundamentally un-democratic (un-social) purpose of the Constitution (which is to provide consistency regardless of majority opinion). And why are judges best suited to determine social meaning?
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NYU℠
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(Original post by AngeloR)
You have argued for the view that judges do change the language of the Constitution. You have said that an "interesting transition" occurred after Brandies' concurrence. That certainly sounds like change.
False.

They have not taken a marker to the Constitution and changed the language. They changed the interpretation.

Ronald Dworkin argues for a constructive view. But, at least in my view, the meaning of language cannot change independent of a speaker's intent. For example, consider what it would mean to take someone's words out of context. I argue that if you misquote me (or take my words out of context), it doesn't alter the actual meaning of my statements, which were made at the time they were said.

For the sake of argument, lets say that I accept your view that social circumstances alters meaning (the meaning changes based on societal opinion). First, doesn't that seem in tension with the fundamentally un-democratic (un-social) purpose of the Constitution (which is to provide consistency regardless of majority opinion). And why are judges best suited to determine social meaning?
Why are you trying to engage in a jurisprudential argument here? My response to you would simply be that I’m not Dworkinian. I’m a positivist and agree largely with Raz.

Additionally, law is inherently vague and open to/requires interpretation. And, you’re always going to get “tension” in whatever theory you have unless you’re committed to illiberal democracy or liberal autocracy. The liberal nature of any constitution is at odds with the democratic part of the government. Inter alia, part of why I believe judges ought to retain interpretive power, including hard judicial review, is an institutional mechanism to preserve liberal democracy. I have no expectation that judges will always get it right.
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AngeloR
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(Original post by NYU2012)
False.

They have not taken a marker to the Constitution and changed the language. They changed the interpretation.



Why are you trying to engage in a jurisprudential argument here? My response to you would simply be that I’m not Dworkinian. I’m a positivist and agree largely with Raz.

Additionally, law is inherently vague and open to/requires interpretation. And, you’re always going to get “tension” in whatever theory you have unless you’re committed to illiberal democracy or liberal autocracy. The liberal nature of any constitution is at odds with the democratic part of the government. Inter alia, part of why I believe judges ought to retain interpretive power, including hard judicial review, is an institutional mechanism to preserve liberal democracy. I have no expectation that judges will always get it right.
You have said that judges change the interpretation, not the language. Sure, they do not take a marker and scribble over the document. But so long as the meaning has changed, one of two things had to have happened: (1) the judge altered the meaning OR (2) social opinion has altered meaning.

I bring up ideas within philosophy of law to clarify your views. You argue that judges do not change language, but rather their interpretation. OK. This commits you to the view that social facts have already changed the meaning of the language. I simply disagree.

You argue that judges "ought to retain interpretive power [...[ to preserve liberal democracy." I'm guessing you mean to protect the "liberal" part of "liberal democracy." That's fine. My issue is simply this: social meaning is determined by social facts. Social meaning changes based on social consensus ("majority," if you will). In my view, liberalism is committed to things independent of social facts. That is why they are "un-democratic." Thus, in my view, judges cannot rely on "social change" to create (or delete) rights, if they are to protect the "liberal" in liberal democracy. And, of course, hard judicial review in fundamentally un-democratic. I accept this, and I support judicial review. But only insofar as they are to protect liberalism. Not to enact "democratic" change, where democracy is the implementation of policy or meaning by virtue of social support.
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NYU℠
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(Original post by AngeloR)
You have said that judges change the interpretation, not the language. Sure, they do not take a marker and scribble over the document. But so long as the meaning has changed, one of two things had to have happened: (1) the judge altered the meaning OR (2) social opinion has altered meaning.

I bring up ideas within philosophy of law to clarify your views. You argue that judges do not change language, but rather their interpretation. OK. This commits you to the view that social facts have already changed the meaning of the language. I simply disagree.
But a simple post on TSR isn’t going to change my views, or clarify them. There are entire books on the issue, and as someone who did their law dissertation on legal theory and has an MA in legal theory, I’m quite familiar with legal theory. You’re not going to hash out here in extremely short and simple posts some of the more complex issues in legal theory.

Perhaps you could clarify something or revise my view, but it likely wouldn’t be accomplished through this medium.

You argue that judges "ought to retain interpretive power [...[ to preserve liberal democracy." I'm guessing you mean to protect the "liberal" part of "liberal democracy." That's fine. My issue is simply this: social meaning is determined by social facts. Social meaning changes based on social consensus ("majority," if you will). In my view, liberalism is committed to things independent of social facts. That is why they are "un-democratic." Thus, in my view, judges cannot rely on "social change" to create (or delete) rights, if they are to protect the "liberal" in liberal democracy. And, of course, hard judicial review in fundamentally un-democratic. I accept this, and I support judicial review. But only insofar as they are to protect liberalism. Not to enact "democratic" change, where democracy is the implementation of policy or meaning by virtue of social support.
I would strongly disagree with this analysis. Liberalism is only a legitimate goal of the law so long as it maintains popular support within the polity. Should the society decide that they no longer want liberalism, its illegitimate for the law to insist over and above their wishes, that liberalism remain. That is, for liberalism to be a legitimate goal of the law, the society must support liberalism and be committed to the protection of rights. As I said, I am a positivist. If liberalism is committed to things other than social facts, as you allege, then these “other things” are not to be relevant to legal determinations.

Regarding more specifically the issue of interpreting rights within societies where liberalism is a social fact, “social change” will inform how we think about rights and their limits. Absent consideration of social change, the First Amendment would still be restricted to prior restraint.

To get back to the main point, it seems clear that you agree that judges don’t change the language of the document; so it’s unclear to me why we’re engaging in this exercise of jurisprudential thought on how judges interpret/change the law. That is, it’s not clear what the purpose or intent was in engaging in superfluous legal theory, when it’s obvious that judges don’t take a marker to the document.
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AngeloR
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(Original post by NYU2012)
But a simple post on TSR isn’t going to change my views, or clarify them. There are entire books on the issue, and as someone who did their law dissertation on legal theory and has an MA in legal theory, I’m quite familiar with legal theory. You’re not going to hash out here in extremely short and simple posts some of the more complex issues in legal theory.

Perhaps you could clarify something or revise my view, but it likely wouldn’t be accomplished through this medium.



I would strongly disagree with this analysis. Liberalism is only a legitimate goal of the law so long as it maintains popular support within the polity. Should the society decide that they no longer want liberalism, its illegitimate for the law to insist over and above their wishes, that liberalism remain. That is, for liberalism to be a legitimate goal of the law, the society must support liberalism and be committed to the protection of rights. As I said, I am a positivist. If liberalism is committed to things other than social facts, as you allege, then these “other things” are not to be relevant to legal determinations.

Regarding more specifically the issue of interpreting rights within societies where liberalism is a social fact, “social change” will inform how we think about rights and their limits. Absent consideration of social change, the First Amendment would still be restricted to prior restraint.

To get back to the main point, it seems clear that you agree that judges don’t change the language of the document; so it’s unclear to me why we’re engaging in this exercise of jurisprudential thought on how judges interpret/change the law. That is, it’s not clear what the purpose or intent was in engaging in superfluous legal theory, when it’s obvious that judges don’t take a marker to the document.
Thank you for your thoughtful responses. They have been interesting.

I was not implying I could change your views, merely to clarify my understanding of your views. Nor am I questioning your credentials.

A few points.
Majority support for a system does not entail majority support for policy, or the meaning of language. That is my contention. We can have majority support for liberalism broadly defined, and majority support for torture. I find judges justified in striking down policy enabling torture regardless. This is what I mean by un-Democratic. I’m sure you agree.

I’m not sure why you think jurisprudential considerations are superfluous here. You argue that judges ought to interpret the meaning of law in light of the social meaning of words. This seems pretty relevant to jurisprudence. And on that note, I think you can be committed to positivism and believe that a rule of recognition DOES NOT include what society thinks is the meaning of words.
Next, I disagree that judges “do not change language.” Like I said, I’m committed to the philosophical view that language does not change by social meaning, and is “fixed” to intent (broadly speaking). I think judges ought to not change language, but that’s a different matter. We both agree that judges should not change language. I’m using jurisprudential concerns to highlight where our true disagreement comes from.
The fact that you are a positivist is pretty relevant here. While judges do not take a marker to the document, it seems clear that judges either “make new law” (whether by mistake (Hart) or otherwise (Shapiro), or they “discover” law (natural law). You keep saying that judges “interpret” law. This does not say much. Interpretation is still a change in law or a discovery of new law.
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NYU℠
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(Original post by AngeloR)
Majority support for a system does not entail majority support for policy, or the meaning of language. That is my contention. We can have majority support for liberalism broadly defined, and majority support for torture. I find judges justified in striking down policy enabling torture regardless. This is what I mean by un-Democratic. I’m sure you agree.
Of course. This would be among the reasons why judicial review is, in my view, both justified and beneficial. It can counteract illiberal whims.

I’m not sure why you think jurisprudential considerations are superfluous here. You argue that judges ought to interpret the meaning of law in light of the social meaning of words. This seems pretty relevant to jurisprudence. And on that note, I think you can be committed to positivism and believe that a rule of recognition DOES NOT include what society thinks is the meaning of words.
To some extent, yes; to some extent no. I did my thesis on the issue of who has ultimate say in determining the content of a rule of recognition. I do not believe it is judges, but is rather a certain non-specific but specifiable group winthin society.

Next, I disagree that judges “do not change language.” Like I said, I’m committed to the philosophical view that language does not change by social meaning, and is “fixed” to intent (broadly speaking). I think judges ought to not change language, but that’s a different matter. We both agree that judges should not change language. I’m using jurisprudential concerns to highlight where our true disagreement comes from.
This is an entirely bizarre thesis. Language changes all the time, it’s part of what it is to be language. Language just is its social meaning. I think you’d be hard pressed to find any linguist committed to the view that language has some sort of objective fixed meaning.

Perhaps you mean that the intent of the speaker fixes the meaning of the statement for some specified statement. But, this is an equally bizarre view. I have no way of knowing the intent of the speaker, he’s long dead. At best, I can guess. So, it’s unclear how intent would fix the meaning, as I have no way of discovering this information.

And, then of course you have the issue of when this is applied to constitutions. Why should a society be bound today by the intent of someone long dead? Such a document wouldn’t have present-day democratic legitimacy. We instead read the document in its present day context, which may include an originalist (which isn’t very originalist at all) interpretation.

The fact that you are a positivist is pretty relevant here. While judges do not take a marker to the document, it seems clear that judges either “make new law” (whether by mistake (Hart) or otherwise (Shapiro), or they “discover” law (natural law). You keep saying that judges “interpret” law. This does not say much. Interpretation is still a change in law or a discovery of new law.
But again, they aren’t changing the document. All new rulings in common law make new law.

To quote your original question:
can the language of a document change without the intervention of judges?
The language of the document never changes unless by amendmentment. Judges aren’t changing the language of the document.
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AngeloR
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(Original post by NYU2012)
Of course. This would be among the reasons why judicial review is, in my view, both justified and beneficial. It can counteract illiberal whims.



To some extent, yes; to some extent no. I did my thesis on the issue of who has ultimate say in determining the content of a rule of recognition. I do not believe it is judges, but is rather a certain non-specific but specifiable group winthin society.



This is an entirely bizarre thesis. Language changes all the time, it’s part of what it is to be language. Language just is its social meaning. I think you’d be hard pressed to find any linguist committed to the view that language has some sort of objective fixed meaning.

Perhaps you mean that the intent of the speaker fixes the meaning of the statement for some specified statement. But, this is an equally bizarre view. I have no way of knowing the intent of the speaker, he’s long dead. At best, I can guess. So, it’s unclear how intent would fix the meaning, as I have no way of discovering this information.

And, then of course you have the issue of when this is applied to constitutions. Why should a society be bound today by the intent of someone long dead? Such a document wouldn’t have present-day democratic legitimacy. We instead read the document in its present day context, which may include an originalist (which isn’t very originalist at all) interpretation.



But again, they aren’t changing the document. All new rulings in common law make new law.

To quote your original question:


The language of the document never changes unless by amendmentment. Judges aren’t changing the language of the document.
I think you are being uncharitable. To call the view that there is no cognizable "social meaning" bizarre is unfair. I am not alone in this view, and there is good work in the philosophy of language that I supports my view. You suggest that I would be hard-pressed to find linguists committed to the view that language is stable. Sure. But there are plenty that believe that the language of statements are fixed. And that is clearly what I am referring to. Language can evolve, but the language of specific statements is a different matter.

You argue that there is no way to know the "intent" of speakers, especially when it comes to the Constitution. I agree. But in my view, public-meaning originalism does well in working around this criticism.

You raise the well-known "dead-hand" objection. Why should society be bound by the intent of long-dead drafters? My response is probably too hard to communicate in a TSR post. But I don't find the objection convincing. To give the dead hand objection normative force is to presuppose the undesirability of being ruled by the dead. But the very nature of law is that it survives people. Considerations grounded in rule of law, in my view, outweigh the considerations of popular sovereignty. Just like in cases of judicial review.

Yes, judges must apply the law to present-day cases. But to attempt to find a way to "fix" the meaning of the Constitution is, in my view, important to preserve rule of law. Your altogether dismissal of originalism is unsettling. It is a view held by a substantial number of federal judges. It is a view held by prominent academics. This includes liberal thinkers (Amar, for example). You keep referring to "present-day democratic legitimacy." Yet, judicial review, like you admit, is fundamentally un-democratic. So I'm not sure democratic legitimacy is the right route to go here.
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NYU℠
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(Original post by AngeloR)
I think you are being uncharitable. To call the view that there is no cognizable "social meaning" bizarre is unfair. I am not alone in this view, and there is good work in the philosophy of language that I supports my view. You suggest that I would be hard-pressed to find linguists committed to the view that language is stable. Sure. But there are plenty that believe that the language of statements are fixed. And that is clearly what I am referring to. Language can evolve, but the language of specific statements is a different matter.
Heretofore you only discussed “the meaning of language” and not the meaning of statements. Thus, I said that perhaps you specifically meant the meaning of statements.

You argue that there is no way to know the "intent" of speakers, especially when it comes to the Constitution. I agree. But in my view, public-meaning originalism does well in working around this criticism.
But this is merely, as I indicated, a guess as to what the meaning was and should be. It is a “rational reconstruction.” To use your intent philosophy, you’re merely attempting to discover what the intent of the speaker was when he wrote the statement. But, in all reality, you don’t have any tools for determining what the intent was; you can merely guess and try to come up with a best answer as to the intent, and then as to the meaning of the statement.

This intent-fixes-objective-meaning theory is to me philosophical theory in the pejorative sense because it doesn’t describe how human interactions in language actually occur; and in any case, the intent of the speaker isn’t determining the meaning of the statement in any meaningful way. Instead, the listener’s interpretation is the actual meaning that the listener takes away — and perhaps the listener attempts to decode the meaning of the speaker and use that intent to decode the meaning, but it still remains the case that all of this work is being done by the listener and is therefore subjective. The meaning of the statement to the listener can only ever be the subjective one formed by the listener; and the meaning of the statement to the speaker is what he intended it to be. Absent some form of extra-linguistic communication to “insert” intent into the mind of another, intent of another is subjectively constructed.

Having studied both philosophy of language and psycholinguistics, I want philosophy to tell us what is actually happening, rather than mere speculation and conjecture.

You raise the well-known "dead-hand" objection. Why should society be bound by the intent of long-dead drafters? My response is probably too hard to communicate in a TSR post. But I don't find the objection convincing. To give the dead hand objection normative force is to presuppose the undesirability of being ruled by the dead. But the very nature of law is that it survives people. Considerations grounded in rule of law, in my view, outweigh the considerations of popular sovereignty. Just like in cases of judicial review.
Then, prima facile, we will never agree because our political theories differ drastically. Law that lacks legitimacy isn’t law, as far as I’m concerned, because it will fail some rule of utlitimate recognition. To use Hart, law is social practice and we have to believe that we are bound by it; absent legitimacy, we don’t believe we are bound.

To use the English example, the law is the Queen in Parliament. Parliament has the power to amend any law whatsoever, and [we assume] any law in force has legitimacy, as Parliament has allowed it to remain in force, and the people have elected Parliament — a “removed” or “displaced” from the subject/authority, form of legitimacy.

Yes, judges must apply the law to present-day cases. But to attempt to find a way to "fix" the meaning of the Constitution is, in my view, important to preserve rule of law. Your altogether dismissal of originalism is unsettling. It is a view held by a substantial number of federal judges. It is a view held by prominent academics. This includes liberal thinkers (Amar, for example). You keep referring to "present-day democratic legitimacy." Yet, judicial review, like you admit, is fundamentally un-democratic. So I'm not sure democratic legitimacy is the right route to go here.
I find originalism entirely uncompelling, not least of all because it fails to practice what it preaches. One of the best cases is Scalia’s opinion in Heller. If the intent of the author is to be the relevant consideration, then the second amendment needed to be considered in its original setting — prior to Gitlow, prior to the settling of the Calhoun-Webster debate, prior to the existence of a federal military, and so on. Scalia endeavors to do none of these; he removes the meaning from its historical setting entirely. He looks for the “intent” but removes the interpretation from the historical construction which the intent actually created. The authors never intended the Bill of Rights to apply to States, that didn’t happen until 1925, and if the intent of the author is paramount, then the intent needs to be understood within its proper historical setting.

I’ve assume intent originalism due to your prior intent-based statement meaning argument. Meaning originalism would be subject to much the same criticism, however.

Judicial review is un-democratic only in the sense that is overrides a particular piece of legislation; but it is democratic in the sense that people agree to the rules that govern the society, including judicial review. It enjoys institutional democratic legitimacy to override specific democratically-approved legislation.
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Give me more to work with OP...
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AngeloR
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(Original post by NYU2012)
Heretofore you only discussed “the meaning of language” and not the meaning of statements. Thus, I said that perhaps you specifically meant the meaning of statements.



But this is merely, as I indicated, a guess as to what the meaning was and should be. It is a “rational reconstruction.” To use your intent philosophy, you’re merely attempting to discover what the intent of the speaker was when he wrote the statement. But, in all reality, you don’t have any tools for determining what the intent was; you can merely guess and try to come up with a best answer as to the intent, and then as to the meaning of the statement.

This intent-fixes-objective-meaning theory is to me philosophical theory in the pejorative sense because it doesn’t describe how human interactions in language actually occur; and in any case, the intent of the speaker isn’t determining the meaning of the statement in any meaningful way. Instead, the listener’s interpretation is the actual meaning that the listener takes away — and perhaps the listener attempts to decode the meaning of the speaker and use that intent to decode the meaning, but it still remains the case that all of this work is being done by the listener and is therefore subjective. The meaning of the statement to the listener can only ever be the subjective one formed by the listener; and the meaning of the statement to the speaker is what he intended it to be. Absent some form of extra-linguistic communication to “insert” intent into the mind of another, intent of another is subjectively constructed.

Having studied both philosophy of language and psycholinguistics, I want philosophy to tell us what is actually happening, rather than mere speculation and conjecture.



Then, prima facile, we will never agree because our political theories differ drastically. Law that lacks legitimacy isn’t law, as far as I’m concerned, because it will fail some rule of utlitimate recognition. To use Hart, law is social practice and we have to believe that we are bound by it; absent legitimacy, we don’t believe we are bound.

To use the English example, the law is the Queen in Parliament. Parliament has the power to amend any law whatsoever, and [we assume] any law in force has legitimacy, as Parliament has allowed it to remain in force, and the people have elected Parliament — a “removed” or “displaced” from the subject/authority, form of legitimacy.



I find originalism entirely uncompelling, not least of all because it fails to practice what it preaches. One of the best cases is Scalia’s opinion in Heller. If the intent of the author is to be the relevant consideration, then the second amendment needed to be considered in its original setting — prior to Gitlow, prior to the settling of the Calhoun-Webster debate, prior to the existence of a federal military, and so on. Scalia endeavors to do none of these; he removes the meaning from its historical setting entirely. He looks for the “intent” but removes the interpretation from the historical construction which the intent actually created. The authors never intended the Bill of Rights to apply to States, that didn’t happen until 1925, and if the intent of the author is paramount, then the intent needs to be understood within its proper historical setting.

I’ve assume intent originalism due to your prior intent-based statement meaning argument. Meaning originalism would be subject to much the same criticism, however.

Judicial review is un-democratic only in the sense that is overrides a particular piece of legislation; but it is democratic in the sense that people agree to the rules that govern the society, including judicial review. It enjoys institutional democratic legitimacy to override specific democratically-approved legislation.
You say it is a rational reconstruction. That is true. And I do not know of any public-meaning originalists who would claim that their method is perfect- or even good. Just preferably to others. Scalia, for example, liked to tell the story of being chased by the bear (I don't have to outrun the bear, just you!).

I don't deny that the listener plays an important role in determining the meaning of language (by language I mean the language of statements). I am merely privileging the listener at the time the law was ratified. I am arguing that judges ought to feel bound by an obligation to interpret the law as it is. That judges ought to be encumbered by a sense of obligation independent of incommensurable values or determinations of public opinion.

You bring up Heller. I find this to be a poor example. There are lots of better examples in my view (Bush v. Gore, for one). But Heller seems pretty consistent. There is an operative clause and a prefatory clause. This is pretty clear, and it was pretty standard phrasing at the time. The meaning of military in the 18th century was much broader than it is today (insofar as we have one, notwithstanding the national guard). It encompassed all able-bodied men. The word "regulated" in the 18th century meant organized, but not regulatory in the government sense as it does today.

You argue that the founders never intended for the Bill of Rights to be enforced upon the states. This is an especially odd argument. Amendments are part of the Constitution. The 14th Amendment is part of the Constitution. Having a "fixed" sense of the Constitution does not preclude amending the Constitution (Article V explicitly lays procedures for doing so). Indeed, I am sympathetic to Sunstein's view of "Constitutional moments."

You also bring up the British rule of recognition. This is misleading in the U.S. context. You correctly state the secondary rule in the UK context. This parliamentary sovereignty encumbers judges with an obligation independent of their views on incommensurable values or public opinion. They are fixed by Acts of Parliament. Therefore, I see no issue.

The US is altogether a different case. The Supreme Court is not obligated to Congress in any relevant sense in cases of theoretical disagreement. Thus, the power dynamics are different The Justices are obligated only to the Constitution. In my view, a theory of constitutional interpretation must preserve that obligation.
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(Original post by AngeloR)
You say it is a rational reconstruction. That is true. And I do not know of any public-meaning originalists who would claim that their method is perfect- or even good. Just preferably to others. Scalia, for example, liked to tell the story of being chased by the bear (I don't have to outrun the bear, just you!).

I don't deny that the listener plays an important role in determining the meaning of language (by language I mean the language of statements). I am merely privileging the listener at the time the law was ratified. I am arguing that judges ought to feel bound by an obligation to interpret the law as it is. That judges ought to be encumbered by a sense of obligation independent of incommensurable values or determinations of public opinion.

You bring up Heller. I find this to be a poor example. There are lots of better examples in my view (Bush v. Gore, for one). But Heller seems pretty consistent. There is an operative clause and a prefatory clause. This is pretty clear, and it was pretty standard phrasing at the time. The meaning of military in the 18th century was much broader than it is today (insofar as we have one, notwithstanding the national guard). It encompassed all able-bodied men. The word "regulated" in the 18th century meant organized, but not regulatory in the government sense as it does today.

You argue that the founders never intended for the Bill of Rights to be enforced upon the states. This is an especially odd argument. Amendments are part of the Constitution. The 14th Amendment is part of the Constitution. Having a "fixed" sense of the Constitution does not preclude amending the Constitution (Article V explicitly lays procedures for doing so). Indeed, I am sympathetic to Sunstein's view of "Constitutional moments."

You also bring up the British rule of recognition. This is misleading in the U.S. context. You correctly state the secondary rule in the UK context. This parliamentary sovereignty encumbers judges with an obligation independent of their views on incommensurable values or public opinion. They are fixed by Acts of Parliament. Therefore, I see no issue.

The US is altogether a different case. The Supreme Court is not obligated to Congress in any relevant sense in cases of theoretical disagreement. Thus, the power dynamics are different The Justices are obligated only to the Constitution. In my view, a theory of constitutional interpretation must preserve that obligation.
As I already stated, we aren’t going to agree.

I don’t find Heller consistent at all. As I said, it fails to appreciate that Gitlow was not decided, that the Calhoun-Webster debate was no decided, and so on. I concur with others that read in its proper historical setting, it stands for the right of states to have militias that the federal government cannot disarm; not for a private right to arms. I find Scalia’s “originalism” to be completely void of intellectual honesty in Heller because he engages in a linguistic analysis, as opposed to a proper analysis based on historical context — namely what the scope of the second amendment would have been when it was written. It certainly never could have protected a private right to arms that could not be abrogated by states, since states were free to override federal constitutional rights.

Indeed, amendments are part of the Constitution. And attempting to interpret according to “original meaning” while also attempting to apply completely new law/interpretations is absurd. Gitlow changed the entire constitutional structure and meaning of rights. You can’t, without being underhanded, attempt to apply “original meaning” to something that the “original meaning” never intended, contemplated, etc.

Scalia has said that his originalism would leave a number of questions outside of constitutional law, and instead be left to the democratic process, because the “original Constitution” never mentioned or anticipated such issues. It’s internally incoherent and inconsistent to attempt to use “Originalism” while using a post-Gitlow legal framework; as the “original meaning” is directly at odds with Gitlow. The original meaning of the second amendment could never have supplied a right to private arms, where states had no power to deprive citizens of arms. Yet, this is exactly what Scalia’s originalism would have us believe. It’s historical non-sense.

Another example: Scalia supports more than prior restraint in relation to the first amendment free speech clause. Yet, anyone with any knowledge of legal history, knows that “original meaning” was limited to prior restraint. Scalia’s defense of “free speech” is entirely at odds with his “originalism.” Scalia’s originalism is a false theory he uses to do his own legal politics. It’s no different than living tree constitutionalism. He was just as political and politically motivated as anyone using living tree.



My point regarding rules of recognition was about legitimacy, not about the specific rule — the second part of my statement was material. I see legitimacy as a pre-requisite for legal validity, though this legitimacy need not be democratic, especially in non-democratic systems.
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AngeloR
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(Original post by NYU2012)
As I already stated, we aren’t going to agree.

I don’t find Heller consistent at all. As I said, it fails to appreciate that Gitlow was not decided, that the Calhoun-Webster debate was no decided, and so on. I concur with others that read in its proper historical setting, it stands for the right of states to have militias that the federal government cannot disarm; not for a private right to arms. I find Scalia’s “originalism” to be completely void of intellectual honesty in Heller because he engages in a linguistic analysis, as opposed to a proper analysis based on historical context — namely what the scope of the second amendment would have been when it was written. It certainly never could have protected a private right to arms that could not be abrogated by states, since states were free to override federal constitutional rights.

Indeed, amendments are part of the Constitution. And attempting to interpret according to “original meaning” while also attempting to apply completely new law/interpretations is absurd. Gitlow changed the entire constitutional structure and meaning of rights. You can’t, without being underhanded, attempt to apply “original meaning” to something that the “original meaning” never intended, contemplated, etc.

Scalia has said that his originalism would leave a number of questions outside of constitutional law, and instead be left to the democratic process, because the “original Constitution” never mentioned or anticipated such issues. It’s internally incoherent and inconsistent to attempt to use “Originalism” while using a post-Gitlow legal framework; as the “original meaning” is directly at odds with Gitlow. The original meaning of the second amendment could never have supplied a right to private arms, where states had no power to deprive citizens of arms. Yet, this is exactly what Scalia’s originalism would have us believe. It’s historical non-sense.

Another example: Scalia supports more than prior restraint in relation to the first amendment free speech clause. Yet, anyone with any knowledge of legal history, knows that “original meaning” was limited to prior restraint. Scalia’s defense of “free speech” is entirely at odds with his “originalism.” Scalia’s originalism is a false theory he uses to do his own legal politics. It’s no different than living tree constitutionalism. He was just as political and politically motivated as anyone using living tree.



My point regarding rules of recognition was about legitimacy, not about the specific rule — the second part of my statement was material. I see legitimacy as a pre-requisite for legal validity, though this legitimacy need not be democratic, especially in non-democratic systems.
I take your point about the rule of recognition. I understand your view. I was merely clarifying my earlier point about "democratic legitimacy." Americans swear an oath to defend the Constitution when in the military or serving in public office, not to Congress or to public opinion.

I'm not sure why we cannot come to some agreement here. You argue that Scalia's analysis is void of intellectual honesty because he engaged in linguistics. This seems strongly misguided. Originalism is not a sole commitment, nor is it a primary one. Textualism, of which Scalia was an avid proponent, is heavily grounded in linguistics. And no originalist would privilege intent over plain meaning. Originalism comes to play only in very specific cases of ambiguity (like "cruel and unusual").

And here, I think Heller is well grounded. It is a common view that Heller properly distinguishes between the prefatory and operative clause. You say that you support a reading of the 2nd Amendment where states have a right to militias which the federal government cannot disarm. Again, you are misusing the term "militia." A militia was not controlled by the states nor the federal government. A militia in the 18th century referred to a body of people. You are ignoring the rich history of the constitutional use of "the people." The Second Amendment famously says "...the right of the people..."Those words are extremely significant. You say that the history is clear.

Richard Lee: "A militia, when properly formed, are in fact the people themselves …"
George Mason: "I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
The Philadelphia Federal Gazette (1789): "the people are confirmed by the next article in their right to keep and bear their private arms."

You say that the original meaning of the 1st Amendment protected nothing other than prior restraint. But you ignore Jefferson and Madison's staunch opposition to such laws. And you ignore the public meaning of the First Amendment (Jefferson was elected, in large part, due to his argument that the Alien and Sedition Acts were unconstitutional). The Supreme Court declined to hear cases challenging laws against libel against the government. This alone is not determinative. All it suggests is a lack of precedent (until the 20th century, where the Supreme Court vigorously struck down laws under free speech). I find Scalia's expansive view of "or abridging the freedom of speech" consistent. You make a big deal of the paradigm shift in Gitlow. Do you deny that the "original meaning" of the 14th Amendment, in its due process clause, does not include incorporation? The 14th Amendment directly, and explicitly, applies to the states. You say that the meaning post-Gitlow is directly contrary to the original meaning of the 2nd Amendment. I simply do not find such an incoherence, if you correctly define "militia" as being "the people." You can make a reasonable argument that the framers never considered that a state would disarm its own people (this would have seemed irrational). But in the absence of clear public meaning, I would go with the clear language of the Amendment. And besides, the prefatory clause of the 2nd Amendment opines that a militia is necessary.
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NYU℠
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(Original post by AngeloR)
I take your point about the rule of recognition. I understand your view. I was merely clarifying my earlier point about "democratic legitimacy." Americans swear an oath to defend the Constitution when in the military or serving in public office, not to Congress or to public opinion.
But, on my view, the Constitution only enjoys the status of law so long as it remains “legitimate.”

I'm not sure why we cannot come to some agreement here. You argue that Scalia's analysis is void of intellectual honesty because he engaged in linguistics. This seems strongly misguided. Originalism is not a sole commitment, nor is it a primary one. Textualism, of which Scalia was an avid proponent, is heavily grounded in linguistics. And no originalist would privilege intent over plain meaning. Originalism comes to play only in very specific cases of ambiguity (like "cruel and unusual".
The mere fact of linguistic analysis isn’t the issues. The issue is that his linguistic analysis was not accompanied by a proper historical analysis. That is, merely analyzing the meaning the phrases doesn’t provide you with their historical context.

And here, I think Heller is well grounded. It is a common view that Heller properly distinguishes between the prefatory and operative clause. You say that you support a reading of the 2nd Amendment where states have a right to militias which the federal government cannot disarm. Again, you are misusing the term "militia." A militia was not controlled by the states nor the federal government. A militia in the 18th century referred to a body of people. You are ignoring the rich history of the constitutional use of "the people." The Second Amendment famously says "...the right of the people..."Those words are extremely significant. You say that the history is clear.
We could go back and forth citing various authorities virtually endlessly.

I understand what a militia was, and that’s part of my argument. The second amendment served a particular historical purpose, it pre-dated Webster-Calhoun, interposition was still alive, there was no standing army, etc. With the arrival of a standing federal military and the defeat of interposition, the second amendment lost is historical purpose. You no longer needed militias to defend the country or to oppose Federal overreach.

And we have US v. Cruikshank saying that a right to personal arms isn’t from the Constitution, it’s from a natural law right. And US v Miller directly relating ownership to militia use.

You say that the original meaning of the 1st Amendment protected nothing other than prior restraint. But you ignore Jefferson and Madison's staunch opposition to such laws. And you ignore the public meaning of the First Amendment (Jefferson was elected, in large part, due to his argument that the Alien and Sedition Acts were unconstitutional). The Supreme Court declined to hear cases challenging laws against libel against the government. This alone is not determinative. All it suggests is a lack of precedent (until the 20th century, where the Supreme Court vigorously struck down laws under free speech). I find Scalia's expansive view of "or abridging the freedom of speech" consistent. You make a big deal of the paradigm shift in Gitlow. Do you deny that the "original meaning" of the 14th Amendment, in its due process clause, does not include incorporation? The 14th Amendment directly, and explicitly, applies to the states. You say that the meaning post-Gitlow is directly contrary to the original meaning of the 2nd Amendment. I simply do not find such an incoherence, if you correctly define "militia" as being "the people." You can make a reasonable argument that the framers never considered that a state would disarm its own people (this would have seemed irrational). But in the absence of clear public meaning, I would go with the clear language of the Amendment. And besides, the prefatory clause of the 2nd Amendment opines that a militia is necessary.
This is historically incorrect.

(1) I think it’s patently clear that the first amendment free speech clause applied only to prior restraint. This would have an adoption of the English common law upon which much of US Law was based. Blackstone’s commentaries, for instance. And while Jefferson may have argued that, it wasn’t the law. Again, I’m a positivist. Jefferson’s opinion may have been great, but it wasn’t part of the law. If originalism is the understanding of the average listener at the time, then the first amendment speech clause would have been understood to be about prior restraint; not about “clear and present danger” or campaign finance, etc. There were laws that allowed you to dunk a woman’s head in water if she was talking too much in public — you can hardly believe that they understood the first amendment to be anything like what we have today. It’s absolute anachronism to attempt to relate them.

(2) States did regulate arms, though. Scalia’s idea that you can’t regulate arms is historically novel, not the other way around. “but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty” Blackstone’s Commentaries, 1803. Story’s Commenaties of 1833 directly relate the owning of arms to militias, and being well ordered militias at that. The “West” had tons of laws regulating firearms.

(3) The 14th Amendment and Gitlow fundamentally altered the constitutional arrangements of the United States. Trying to figure out what the framers wanted is meaningless because Federal power and constitutional law is well beyond what they intended.
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AngeloR
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(Original post by NYU2012)
But, on my view, the Constitution only enjoys the status of law so long as it remains “legitimate.”



The mere fact of linguistic analysis isn’t the issues. The issue is that his linguistic analysis was not accompanied by a proper historical analysis. That is, merely analyzing the meaning the phrases doesn’t provide you with their historical context.



We could go back and forth citing various authorities virtually endlessly.

I understand what a militia was, and that’s part of my argument. The second amendment served a particular historical purpose, it pre-dated Webster-Calhoun, interposition was still alive, there was no standing army, etc. With the arrival of a standing federal military and the defeat of interposition, the second amendment lost is historical purpose. You no longer needed militias to defend the country or to oppose Federal overreach.

And we have US v. Cruikshank saying that a right to personal arms isn’t from the Constitution, it’s from a natural law right. And US v Miller directly relating ownership to militia use.



This is historically incorrect.

(1) I think it’s patently clear that the first amendment free speech clause applied only to prior restraint. This would have an adoption of the English common law upon which much of US Law was based. Blackstone’s commentaries, for instance. And while Jefferson may have argued that, it wasn’t the law. Again, I’m a positivist. Jefferson’s opinion may have been great, but it wasn’t part of the law. If originalism is the understanding of the average listener at the time, then the first amendment speech clause would have been understood to be about prior restraint; not about “clear and present danger” or campaign finance, etc. There were laws that allowed you to dunk a woman’s head in water if she was talking too much in public — you can hardly believe that they understood the first amendment to be anything like what we have today. It’s absolute anachronism to attempt to relate them.

(2) States did regulate arms, though. Scalia’s idea that you can’t regulate arms is historically novel, not the other way around. “but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty” Blackstone’s Commentaries, 1803. Story’s Commenaties of 1833 directly relate the owning of arms to militias, and being well ordered militias at that. The “West” had tons of laws regulating firearms.

(3) The 14th Amendment and Gitlow fundamentally altered the constitutional arrangements of the United States. Trying to figure out what the framers wanted is meaningless because Federal power and constitutional law is well beyond what they intended.
You ignore Madison’s agreement with Jefferson. I would think his opinion relevant, as the principal drafter of the Constitution. And regardless, I agree with you. I do not think Jefferson’s opinion is law. Rather, I point to the public meaning of the Amendment at the time, which agreed with Jefferson and Madison, and led to Jefferson’s ascendance to the Presidency (this seems to also fit your conception of legitimacy). Regardless of the laws pushed by the Federalists, and unchallenged by a federalist-controlled Court, it seems to me pretty clear what the public meaning was in the United States. You cite British common law. But in my view, it is clear that the United States, from the outset, broke with England on free speech. America, in its public culture, has always been more open to free speech. But the issue is hard, and I take your point well. You say that it is “absolute anachronism.” I find this to be a useful critique. But I’m not sure how you construe campaign finance laws as being anything other than prior restraint (it is literally preventing you from spending money to express a message, before you do so).

You say that you understand the meaning of militia. Okay. But you make two discrete arguments, both of which I think are largely wrong.
(1) You say that states had laws regulating firearms. I take it that you know Heller does not proscribe all regulation of firearms. You cite Blackstone. But the 2nd Amendment must be viewed in light of the American Revolution. It seems obvious why the American conception of a freedom to bear arms would be more expansive than England. We had just won independence from the Crown by making use of such a right.
(2) You say that our federal government is beyond the Founder’s comprehension in power and scope. This is true. But it seems perverse to interpret words intending to restrict federal power and say that, because the federal government in practice as grown massively, the meaning has changed. The 14th Amendment was a paradigm shift. Precedent is important. But the Bill of Rights served primarily to enjoin the government from infringing on certain rights. First, to argue that the 2nd Amendment right “of the people” is actually a right by the state to have a milita seems incoherent. The framers knew the difference between “state” and “people.” Look at the 9th and 10th Amendment, for example. Second, these rights aimed to restrict the government. To say that the government has outgrown these rights post-Gitlow seems circular.
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(Original post by AngeloR)
You ignore Madison’s agreement with Jefferson. I would think his opinion relevant, as the principal drafter of the Constitution. And regardless, I agree with you. I do not think Jefferson’s opinion is law. Rather, I point to the public meaning of the Amendment at the time, which agreed with Jefferson and Madison, and led to Jefferson’s ascendance to the Presidency (this seems to also fit your conception of legitimacy). Regardless of the laws pushed by the Federalists, and unchallenged by a federalist-controlled Court, it seems to me pretty clear what the public meaning was in the United States. You cite British common law. But in my view, it is clear that the United States, from the outset, broke with England on free speech. America, in its public culture, has always been more open to free speech. But the issue is hard, and I take your point well. You say that it is “absolute anachronism.” I find this to be a useful critique. But I’m not sure how you construe campaign finance laws as being anything other than prior restraint (it is literally preventing you from spending money to express a message, before you do so).
I don’t see the US as being a clear break away from English common law. While it’s true that laws weren’t challenged to the Supreme Court, I think it’s useful to look at what laws passed and existed in order to ascertain what people thought the limits of the first amendment speech clause were. Like I said, you could dunk a woman’s head in water if she was talking in public too much; and sedition prosecutions occurred, etc. If Americans were as speech protective then as Scalia would lead you to believe, then none of those laws or prosecutions should have occurred. The American people wouldn’t have allowed it, and it would have been anathema to their understanding of the first amendment. But none of that is the case.

I doubt the framers ever considered the issue of money and speech, epseciallt campaign finance. You can’t appeal to the framers because they had no opinion on this. Yet, Scalia would have you believe that his originalist position provides an answer.

You say that you understand the meaning of militia. Okay. But you make two discrete arguments, both of which I think are largely wrong.
(1) You say that states had laws regulating firearms. I take it that you know Heller does not proscribe all regulation of firearms. You cite Blackstone. But the 2nd Amendment must be viewed in light of the American Revolution. It seems obvious why the American conception of a freedom to bear arms would be more expansive than England. We had just won independence from the Crown by making use of such a right.
Yet laws existed banning ownership, open carry, concealed carry, etc.

It’s also false that we made use of a legal right to arms to rebel against the Crown. We claimed a natural law right and committed treason.

(2) You say that our federal government is beyond the Founder’s comprehension in power and scope. This is true. But it seems perverse to interpret words intending to restrict federal power and say that, because the federal government in practice as grown massively, the meaning has changed. The 14th Amendment was a paradigm shift. Precedent is important. But the Bill of Rights served primarily to enjoin the government from infringing on certain rights. First, to argue that the 2nd Amendment right “of the people” is actually a right by the state to have a milita seems incoherent. The framers knew the difference between “state” and “people.” Look at the 9th and 10th Amendment, for example. Second, these rights aimed to restrict the government. To say that the government has outgrown these rights post-Gitlow seems circular.
You’re right that the Bill of Rights was to restrict federal power. And the 14th was a paradigm shift. But, because of this, you can’t utilize framer’s intent as fruitful source of what the law ought to mean. They never expected the Federal Constitution to control state powers, such that I can sue a state in federal court for a violation of my 1st amendment rights. This was inconceivable to them — in fact, a draft of the first amendment that would have enabled me to sue a state for infringing my speech (essentially adopting Gitlow a century before), was rejected. How we can honestly look at framers’ intent in a world where state power is limited by a federal constitution, contrary to the founders’ intent? You’re asking them for an interpretation that they didn’t agree to, didn’t consent to and didn’t contemplate. And, even worse, there’s no reason to think that the founders had consistent or logically coherent views to consult on any possible topic; they weren’t Gods, and I see no reason to treat them as such.

You’re correct about the language of people, but an insistence on text over historical context is inappropriate. The people were to form militias, and these militias were to be the national defense force, or even perhaps resist the federal government if we accepted interposition. But all of that is now historical coincidence and carries no direct meaning in the present day.

Scalia’s originalism is hardly historically accurate. His historical research isn’t exactly good — in Heller he didn’t bother to even look at the over 1,000 historical laws on guns in the US. If he had, he would have found handgun bans existed in the US long before he was even alive. He’s intellectually lazy regarding the breadth and accuracy of his historical research.
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