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Wednesday, August 01, 2012

Justice Scalia's Foolishness 2

Is Mr. Justice Scalia correct in treating the Federal Constitution as a holy object, and seek access somehow to the mental events in the minds of those who wrote it?

Does this mean that if a case at law were to come before a court, and that case relates to an amendment to the Constution, do the justices need get into the minds not of the Founding Fathers, but of those men who write the applicable amendment to the Constitution?

And do we need merely and solely to gain access to the mental working of the Framers of the Consitution? Or do we also need to look about in the minds of those legislatures of the several states that voted for it? Are those members of the State Legislatures considered Founding Fathers, or don't they meet the definition of "Founding Father"?
The members of the legislatures were in constant contact with their representatives at the convention tasked with writing the Constitution, and we know their representatives paid attention to their missives... where do these "minds" fit in Justice Scalia's reasoning?

It took more than 3 years to secure the adoption of the Constitution by all 13 States (voted on by the State legislatures) and in several States the margin of victory was exceedingly slim.
New Hampshire was the 9th State to ratify, at which time it became the law of the land: the vote by the New Hampshire legislature was 57 to 46 in favor of the Constitution.

In New Hampshire, were the 57 yea voters of minds similar to those inspired minds of the Founding Fathers, and how do we evaluate the minds of the 46 nay voters? Uninspired? Unimaginative? Anti-Wave-of-the-Future?
Tell, us, Mr. Justice Scalia.

The original document also guaranteed the establishment of slavery; was this an "inspired" bit of legislation... or a bit of haggling at the county fair. It worked, but it hardly reflects a frame of mind we wish to seek out and emulate today.

Let us consider Slavery.
Let us now strive to attain insight into the minds of those men struggling and haggling over Slavery, and who came up with a compromise ensuring Slavery had a place in the country...
... and which led to the famous case of Dred Scott vs. Sanford...
... the outcome of which was a highly probable re-iteration of the mental set that established the Constitution: that slaves belonged to their owners: the Justices under Chief Justice Roger Taney actually did get into the minds of the framers of the Constitution as they haggled in the market of political ideas, and they came down 7 to 2 that Mr. Scott was the property of his owner, a result consistent with the negotiated settlement of the Constitutional framers that was necessary to get the southern States into the Union.

The fiery response to the Dred Scott decision was not based on legal discussions about the original intent of the framers of the Constitution, but rather on the outrage of people totally opposed to slavery... a mind-set which was not equally shared by the Framers of the Constitution. There was no similar large scale resistance to slavery back at the birth of the Constitution, and the subsequent development of anti-slavery ideas accentuated those doubts about slavery which the Founding Fathers committed to paper for the edification of future generations, and decreased those writings which reflected their certitude about the rights of slavery.

... or should we ignore all this and struggle to "get into" the minds of those who wrote the 14th Amendment, outlawing such slavery? Or, again, into the minds of the several State legislatures?

Mr. Justice Scalia would answer that I have attacked a straw man, and his position is much more complex than I have described.  I doubt it. The more complex his position becomes, the more a dubious over-simplification of History it becomes.

Mr. Justice Scalia is a Simplifier, and as such seeks to Abridge the complexity of life.
Mr. Justice Scalia takes the Fire and cools it lukewarm.

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