Category: Constitution

Constitutional law

The Biden Administration’s “Friendly Censorship”

Murthy v. Missouri is a case that was recently argued before the United States Supreme Court. It involves the allegation that the Biden administration in 2021 coerced social media companies such as Facebook into removing content that concerned COVID-19 and the COVID-19 vaccine, election integrity, and other matters considered important to the Biden Administration.

The factual findings of the trial court in the case are disturbing, if true:

“For   the   last   few   years—at   least   since   the   2020   presidential   transition—a group of federal officials has been in regular contact with nearly every    major    American    social-media    company    about    the    spread    of    “misinformation”  on  their  platforms.  In  their  concern,  those  officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged  the  platforms  to  remove  disfavored  content  and  accounts  from  their  sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed  users.  The  platforms  also  changed  their  internal  policies  to  capture  more  flagged  content  and  sent  steady  reports  on  their  moderation  activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day. “ (5th Circuit Opinion, Case: 23-30445, Document: 00516889176 , Date Filed: 09/08/2023, Pg. 2) (https://law.justia.com/cases/federal/appellate-courts/ca5/23-30445/23-30445-2023-09-08.html)

The Biden Administration and its defenders seem to have responded to these allegations by saying that the factual findings of the trial court are simply mistaken. They claim that the trial court took things out of context, or just outright misrepresented facts:

“While the legal questions presented are legitimate, a substantial amount of the underlying evidence now before the Court in this case is problematic or factually incorrect. Snippets of various communications between the government, social media executives, and other parties appear to be stitched together – nay, manufactured – more to support a culture war conspiracy theory than to create a credible factual record” (https://www.justsecurity.org/93487/a-conspiracy-theory-goes-to-the-supreme-court-how-did-murthy-v-missouri-get-this-far/)

The government says it was merely engaging in its own speech to combat what it viewed as “bad speech”, and that it did not coerce social media companies into taking down social media posts it disagreed with:

“Brian Fletcher, the principal deputy solicitor general of the United States, argued that the government was legally using its bully pulpit to protect the American public.” (https://www.washingtonpost.com/technology/2024/03/18/supreme-court-social-media-biden-missouri/)

Whether the Biden administration was merely engaged in its own speech or whether it intentionally used the threat of force to coerce social media companies into censoring the posts of their users will be determined through the court process.

Even if the government was simply using its own speech to counter what it viewed as “bad speech”, without any intentional threat of coercion, given the reach of government when it comes to regulating the economy, I think companies and businessmen must, of necessity, take into account what a President and his administration say.

In 1962, Ayn Rand wrote an article titled “Have Gun, Will Nudge” in which she discussed the efforts of then head of the FCC, Newton N. Minow, to “encourage” broadcasters to air certain types of “educational programs”. She noted that the arbitrary power held by the FCC in the form of its licensing of broadcasters meant that it didn’t have to engage in explicit censorship. Broadcasters would attempt to discern through their contacts and back-channels with Washington what the FCC officials would like to see on the airwaves, and then provide it:

“No, a federal commissioner may never utter a single word for or against any program. But what do you suppose will happen if and when, with or without his knowledge, a third-assistant or a second cousin or just a nameless friend from Washington whispers to a television executive that the commissioner does not like producer X or does not approve of writer Y or takes a great interest in the career of starlet Z or is anxious to advance the cause of the United Nations?” (Ayn Rand, “Have Gun, Will Nudge” https://ari.aynrand.org/issues/government-and-business/regulations/pov-have-gun-will-nudge/ )

For the people running a television station, or, today, a social media company, not listening to what the President wants them to post or not post would be almost suicidal. The President has enormous power to bring any company to its knees through executive orders and arbitrary regulations. It doesn’t even matter if the President and his administration intends to engage in censorship. The massive and arbitrary power that the President, and the government in general, holds over any company through economic regulation means any broadcaster or social media company has to take into account what the government wants, just as a matter of self-preservation. If Facebook or Google believes that keeping up certain social media posts might have even a one percent chance of getting them slapped with an antitrust suit, the cost of keeping up the post just isn’t worth the benefits. That’s why true freedom of speech likely isn’t even possible today. As Ayn Rand noted:

“The right to life is the source of all rights — and the right to property is their only implementation. Without property rights, no other rights are possible.”(“Man’s Rights”, Ayn Rand https://ari.aynrand.org/issues/government-and-business/individual-rights/ )

 

Corona Virus Questions

By this point, everyone knows what COVID-19 is, so this topic needs little introduction. The public, media, and political reaction to it is certainly new in my lifetime. People in their sixties or seventies may remember a time when there were health scares of this magnitude, with smallpox or polio, but no one born after about 1965 really remembers them. The last known smallpox case occurred in 1977, and polio was drastically reduced in the late 1950’s, after a vaccine was developed.

The question that I cannot quite answer in my mind is this: Is the public reaction warranted? Even if the reaction is merited, I think we need to think carefully about what solutions to the problem are justified. Sometimes, as the old saying goes: “The cure is worse than the disease.”

Is Corona Virus a great danger? There is sometimes great difficulty in knowing what the right answer is on a complex scientific question, where even the most knowledgeable are operating on limited information. This article, written by a medical doctor makes the same point:

“All of this whiplash points to one perhaps uncomfortable thing: no one really knows how bad COVID-19 is, and how much damage it could eventually lead to.” https://blogs.scientificamerican.com/observations/uncertainty-in-a-time-of-coronavirus/

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Some in the media and on the political left have criticized Donald Trump for being too slow in recognizing or reacting to the virus. This can simply be an error of knowledge. No one is omniscient.  This is precisely why you shouldn’t rely on an all-powerful Federal government to make decisions for you. No single human mind can hold that much complex information at one time and make a decision about what is best for your life and situation. It’s why Capitalism and constitutional republicanism are the proper system.

Government employees are poor at dealing with a disaster because the system they operate in is one of rules. There is no “upside” for a government employee who “thinks outside the box” or innovates. If they succeed, they’re unlikely to get a raise. If they fail, and it gets out they broke the rules, they’re likely to get fired. I noticed this before in a different blog entry about the Ebola Virus outbreak that occurred in Dallas:

“This is the essential problem with all government. Government sets rules that are (ultimately) enforced by the barrel of a gun. The CDC bureaucrats only act if there is a rule telling them to act -which is as it should be. So, its no surprise that when this nurse was under the temperature threshold for their no-fly rule, no one at the CDC was going to “stick their neck out” and recommend that she not fly. A bureaucracy doesn’t reward incentive by its employees like a for-profit business -so there would only be “downside” if a CDC employee took initiative.”  (http://deancook.net/2014/10/16/i-need-wider-powers/)

Since I wrote this blog entry, I found a great example of the contrast between the culture of initiative that a free market encourages and incentivizes, and the “culture of conformity” that government creates. “The Checklist Manifesto” by Atul Gawande discusses how badly State and Federal government failed after Hurricane Katrina. The real, unsung heroes of that disaster were the executives and employees of Walmart. (http://atulgawande.com/book/the-checklist-manifesto/ )

“The government’s command-and-control system became overwhelmed, with too many decisions to make and too little information available. But authorities clung to the traditional model. They argued with state and local government officials over the power to make decisions, resulting in chaos. Supply trucks were halted and requisitions for buses were held up while local transit buses sat idle.

Walmart executives, however, took the opposite approach from command and control. They realized Walmart’s Hurricane Katrina response could make a huge difference. Recognizing the complexity of the circumstances, CEO Lee Scott announced to managers and employees that the company would respond at the level of the disaster. He empowered local employees to make the best decisions they could.” https://www.shortform.com/blog/walmart-hurricane-katrina/

Walmart dealt with Hurricane Katrina better than the government because private enterprise encourages initiative, while government jobs encourage “covering your ass”.

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What changes should we make in the face of Corona Virus?   Even if we need to adjust our behavior temporarily, I think that any permanent  changes in our society aren’t desirable, regardless of the risks. To understand this, ask yourself a simple question: “What is life?”

Is life just continuing to breath and maintaining our body’s homeostatic equilibrium? I read an article about how grandparents are having to be isolated from their families and grandchildren, since the elderly are most at risk when it comes to Corona virus. (The mortality rates are much higher for people in their seventies and eighties.) (https://www.usatoday.com/story/news/nation/2020/03/18/grandparents-cant-babysit-kids-at-home-coronavirus-fears/5072304002/)

Reading the article, I had to wonder: How long does Grandma want to go without seeing her grandchildren? How long does Grandma want to live in isolation like that? Does grandma think that life is about nothing but keeping her heart beating and her lungs pumping air? (Ask your grandma what she thinks.)

Do we want to permanently shut down movie theaters, ball parks, and churches, just because we might catch a disease? Is life worth living without social contact with other people?

Clearly, shutting down public events and isolating grandma and grandpa has to be temporary, in the face of an emergency. It cannot go on forever. Life is about more than maintaining homeostasis.

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Now, let’s turn to some of the governmental measures that have been proposed, or even implemented in the face of this threat. (Which may very well be a real threat -I don’t know for sure.) Is governmental force the answer to the Corona virus? Is a totalitarian dictatorship more “efficient” at dealing with something like this?

The Chinese were certainly quick to build hospitals and implement quarantine…I mean…after their attempt to cover it up failed. The Chinese doctor, Dr Li Wenliang, who originally discovered the virus and tried to warn people was initially arrested and threatened by the Chinese government. https://www.bbc.com/news/world-asia-china-51364382

Additionally, it appears that the Chinese government’s lack of transparency and openness about the virus meant the Western world didn’t find out about it until it was too late to do anything to contain it:

“China has a history of mishandling outbreaks, including SARS in 2002 and 2003. But Chinese leaders’ negligence in December and January—for well over a month after the first outbreak in Wuhan—far surpasses those bungled responses.” https://www.theatlantic.com/ideas/archive/2020/03/china-trolling-world-and-avoiding-blame/608332/

The Chinese government’s failure demonstrates a direct relationship between the initiation of government force and the spread of this disease. A free society and a free press would have had a much better chance of containing the initial outbreak.

Once the virus was outside China, some freer countries seem to have handled it better than others. Italy has now surpassed China in the number of deaths. But, South Korea has done remarkably well:

“A week after the Jan. 27 meeting, South Korea’s CDC approved one company’s diagnostic test. Another company soon followed. By the end of February, South Korea was making headlines around the world for its drive-through screening centers and ability to test thousands of people daily.” https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW

This Reuters article goes on to say that the US response hasn’t been as good. But, it notes that a lot of this had to do with bureaucracy at the FDA:

“How the United States fell so far behind South Korea, according to infectious disease experts, clinicians and state and local officials, is a tale of many contrasts in the two nations’ public health systems: a streamlined bureaucracy versus a congested one, bold versus cautious leadership, and a sense of urgency versus a reliance on protocol.” https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW

Additionally, South Korea is a much smaller country than ours. It’s not much bigger than some of our states. This suggests that what is needed is a political apparatus that is closer to the people, and closer to the problem. Unfortunately, we have ceded too much power to the Federal government, rather than letting individual state governments deal with local problems, which they are closer to, and will have a better feel for.

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What about trying to stop the problem at our borders? Is a temporary restriction on people entering the country from certain areas of the world, especially China, desirable? I’ve wondered if a lot of U.S. Hispanics might not have changed their tune. Are they now wondering why Trump isn’t doing more to keep Asians out of the US? A lot of the immigration debate is driven by tribalism on both sides. As I coincidentally mentioned some time ago, I doubt most Hispanic-Americans would be as against  immigration restrictions if the majority of immigrants were Chinese:

“Would the ‘Hispanic leadership’ in the Democratic Party care so much about immigration if most of the immigrants were German, or Chinese? (I doubt it.) Obama’s policies on immigration were another appeal to a tribalistic pressure group, just like his support of “Black Lives Matter”.” http://deancook.net/2018/12/17/barack-obama-tribalist-in-chief/

At the beginning of the Twentieth Century, a lot of immigration restriction was aimed at preventing Chinese entry into the country for precisely this reason. They brought epidemics with them. For instance, San Francisco was the location of a bubonic plague outbreak in 1900-1904, which was focused in that city’s Chinatown. https://www.sacbee.com/news/california/article240714036.html

All that said, I am in favor of free immigration, because it is consistent with the free market. But, requiring people to undergo a short quarantine period before entering the country could certainly be a reasonable regulation. Denying entry to people specifically known to carry communicable diseases can also likely be justified. You don’t have a right to knowingly get other people sick with your germs -that is an initiation of physical force, just like if someone recklessly drove a car and killed someone. I do, however, think this is a matter for state government, not federal. http://deancook.net/2014/10/30/i-just-realized-there-is-no-authority-under-the-constitution-for-the-feds-to-impose-a-21-day-quarantine-on-persons-from-africa/

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What about some of the aggressive measures that have been implemented at the State or local level in the United States? Are they justified? For instance, San Francisco is only allowing people to leave their homes to get groceries or pick up essentials. https://www.yahoo.com/entertainment/greater-san-francisco-area-residents-195831637.html

Are cities like New York, San Francisco, and Dallas doing the right thing with aggressive, involuntary mass-quarantine measures? (Such as restaurant closings, bar closings, “shelter in place orders”, and the like?)

The “shelter in place” order in San Francisco pretty much has to count on voluntary compliance because there isn’t sufficient governmental force in place to enforce it. How will the cops know if you’re going to the grocery store or not? What if you say you’re not carrying ID? Since homeless people are exempt from the order, how will a cop know you’re not homeless? Short of a system of police checkpoints, an internal “passport system”, and heavy penalties for anyone violating this order, it is unenforceable without voluntary compliance.

In fact, compliance with quarantines and social distancing measures has to be almost entirely voluntary. As a free society, we don’t have the systems in place to enforce mass quarantines against people’s will. (And, it’s not desirable.)

I suppose someone could argue something like: “Emergencies can happen. Systems, like the ability to enforce mass quarantine, in San Francisco and New York, are needed. We need systems in place for mass lock downs, holding people without due process, and violations of the freedom of assembly.”

But, what is an “emergency”? It’s a temporary unexpected calamity. If virus outbreaks happened all the time, they wouldn’t be emergencies. We’d develop technologies and social customs to deal with them. (Everyone would learn to wear bio-hazard suits in public, people would insist that others show them a “clean test result” before letting them into their homes, etc.) No police state would be necessary in that case. The free market and freedom of association could handle it.

But, if virus pandemics remain unlikely, “outlier”, events, as they probably will, then putting into place governmental systems and sufficient force to be able to enforce a “shelter in place” order like they are proposing in New York, and have implemented in San Francisco, could be abused by any would-be tyrant or oligarchy looking to seize power and subvert constitutional republican government.

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If governmental initiation of physical force is never the answer, even in an emergency, then what should be done?

First, it isn’t a good idea to wait until the emergency occurs to figure this stuff out. We need to think carefully about what sorts of temporary governmental measures are acceptable when emotions aren’t running high. The matter requires sober and careful consideration by legislatures and courts, with an eye to due process, basic civil liberties, property rights, and the sanctity of the individual. But, since we are apparently already in the emergency, I would like to propose some “operating principles” for judging different measures being proposed by our Federal and State governments in dealing with COVID-19.

(1) The more each individual can choose their own level of risk, the better.

People can choose whether they want to go to bars, restaurants, and gyms. People can choose if they want to fly on an airplane, or travel on a cruise ship. No one else is being forced to do these things, and mass-restrictions on freedom of assembly should be used extremely sparingly.

I recognize that one person’s decision to take the risk affects other people’s lives. If I go to a restaurant, and get infected, then I could potentially infect other people. But, is mere risk of harming others justification for long-term restrictions on freedom of assembly when there is no evidence that the particular people assembling are sick? Think about this in other contexts. We could save a lot of lives by outlawing cars. People who drive in cars put pedestrians and bikers at risk, so they are, in some sense, putting people who didn’t chose to drive at risk. No one really “needs” a car, do they? Why don’t we get rid of them? Because the inconvenience on our lives is too great.

(This is not to say quarantines are never justified, as further discussed below.)

(2) The more local government can decide on what to do, the better.

County decisions are better than State decisions, and State decisions are better than Federal. Small countries like South Korea can react better than large countries, because their leaders are closer to those they represent. In the United States, each state should be viewed more as its own country, and allowed to deal with the problem, free from Federal interference.

(3) Particular people, who are a known objective threat, should be treated and quarantined, while respecting their due process rights.

The focus should be on encouraging people to be tested and treated through voluntary measures. This seems to be part of what has made South Korea so successful in dealing with the problem:

“The preventative measures being taken in South Korea have so far involved no lockdowns, no roadblocks and no restriction on movement.

Trace, test and treat is the mantra. So far this country of over 50 million people have been doing their bit to help. Schools remain closed, offices are encouraging people to work from home, large gatherings have stopped.” https://www.bbc.com/news/world-asia-51836898

Forced quarantine should be a last resort, and only when there is good evidence someone has the virus. Courts should be set up to provide Skype or other teleconferencing hearings for those quarantined to ensure their due process rights. No one should be held, or forced to stay in their home, more than 24 hours without the State getting approval from a court.

(4) Mere economic hardship should not be grounds for a bailout at other people’s expense.

Where does that end? If a restaurant can be bailed out because no one wants to eat there anymore, then what about all the other people who, in normal conditions, see their business fail? A natural disaster is an insurable event. If a business owner is concerned about business shutdown due to an emergency, then contact Allstate or State Farm, not the Feds.

The Trump plan to give everyone $1,000 makes no sense. Goods aren’t produced by the government. If you print an extra $1,000 and somehow magically put it in everyone’s bank account overnight, then they’ll just bid up the price of goods and services, since the quantity of goods and services will remain the same. That’s a prescription for price inflation.

But, with that said, when there is government-enforced quarantine, there is a good argument for that particular individual or business being compensated. If a person is forced not to work for two weeks because we, as a society, have said they might spread a disease, then that particular individual probably should be entitled to some form of support or compensation during that time-period, because it is essentially a governmental taking of private property under the Fifth Amendment of the Constitution.

(5) Fundamental civil liberties, rights to free assembly, freedom of movement, and due process must be observed.

But, this can occur within the specific context of an emergency. The freedom of assembly is not the freedom to knowingly or even negligently infect other people with your disease. People with specific, known communicable disease can be quarantined, with due process.

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A natural disaster can call for highly unusual government responses, but there is a limit. Even in an emergency, there are things that should not be done, because, in the long-run, free societies have proven to be more prosperous, healthy, and “pro-living” than the alternative, and would-be tyrants will tend to find emergencies, if not manufacture them, to justify the seizure of power.

Three Views of The Concept of “Individual Rights”

There are essentially two views on individual rights today:

(1) They are provided by positive law, by a majority or super-majority. So, for instance, you have rights because a super-majority of people ratified the Constitution and that is respected down to today.

(2) They are based in some sort of “transcendent morality”. Provided by god or something like that. Without a supreme being there would be no rights.

Group 2 will criticize group 1 by saying that they don’t actaully advocate rights since they are just permissions granted by a majority (or super-majority) of people. Group 1 will criticize group 2 by saying that there is no scientific evidence for this “transcendent morality” that supposedly establishes rights.

The criticism that both of these groups make of the other has some merit. Since there is no evidence of god and it must be accepted on faith, which is nothing more than somebody’s feelings, then this view of rights seems to have no basis other than in one’s feelings. If rights have no basis other than in the majority’s feelings, then they are only necessary so long as the majority feels that way.

Ayn Rand proposed a different approach. She presents rights as an aspect of her overall system of morality. Moral principles are essential according to Rand because: (1) “Existence exists”. In other words reality is what it is, and has a certain nature. (2) Human beings also have a certain nature, and *if* they want to live, they need to take certain actions. (Grow crops, hunt for animals, build shelter, make clothing, etc.) Human beings must adopt certain “mental strategies” or “guides to action” that will generally lead them to obtain the things they need to live. These “guides to action” are necessary because the human mind has trouble dealing with numerous concrete things in reality without tying them together mentally and recognizing that they are sufficiently similar to other concrete things to be treated the same. For instance, if you have no concept of, “tiger”, then you will treat every such animal you encounter as behaviorally and physically unrelated to the previous tigers you’ve encountered, and you will fail to recognize the benefits and dangers of being around such an animal, and will tend not to deal with tigers succesfully.

Such “mental strategies” or “guides to action” can be called “virtues”. The dictionary has various definitions of “virtue”, but the closest one to what is meant here is “a good or useful quality of a thing.” A human being has a “good or useful quality” if he adopts these guides to action because they will help him to live. For instance, human beings must judge others to determine if they are a benefit or a danger to their survival. This is the virtue (the guide to action) of justice. Human beings must generally refrain from lying when dealing with others in order to maintain their trust so that they will want to deal with them in the future. (This is the principle/virtue of honesty.) Human beings must act in accordance with these principles because simply holding them as ideals without taking action in accordance with them will cause your mind to slowly become disconnected from reality and will make rational thought more difficult. (The principle/virtue of integrity.)

Similarly, the principle of “individual rights” is a guide to action when dealing with other human beings. Since other human beings can be assumed to want to live just as much as you do, then you must give them an “initial presumption” that they will take action to maintain their lives. They will produce the material values necessary for their survival -property. Just as you must not have your property taken from you by means of physical force without your permission, so must they. As such, you must adopt a sort of baseline guide to action when dealing with all other human beings. This is the principle of individual rights, and the specific right that encompases property is the right to private property. (More generally, all rights are subsumed under “the right to life”, which means the right to live the life of a rational being.) If individual human beings are going to live in a social environment and gain the benefits of living together, they must have their individual rights respected:

“‘Rights’ are a moral concept — the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others — the concept that preserves and protects individual morality in a social context — the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.” (Man’s Rights, by Ayn Rand)

As an aside, the concept of “government” comes in because there is a temptation to “cheat”, and violate the rights of others while hoping that they will still respect yours. For instance, there is the temptation to rob someone at gunpoint and take their property, or just to pilfer it while they aren’t looking. If you are suspected of this, though, then others will use force in retaliation to stop your initial use of force. Government helps keep people honest by promulgating a list of prohibited acts that are widely-recognized as rights violations. Additionally, it isn’t always easy for others to tell who the aggressor is and who the victim is in a given situation. For instance, if you come upon someone with a gun held on him, is he the victim or the aggressor? Perhaps the person holding the gun on him was just robbed, but perhaps he is the robber? Government is created to provide for an orderly protection of individual rights by a recognized central authority that everybody generally trusts to be a rights-protector.

Going back to where we started: How is this view of individual rights different from groups 1 and 2? Both group 1 and 2 tend to present the concept of “rights” as something that is “nice to have”, but as unessential to the task of living one’s life. Both group 1 and 2 tend to think that a working social order is somehow possible even without respect for individual rights. They generally see rights as “altruistic” -a restraint from complete self-interest. Group 2 says rights are a gift from god, but if they are violated by persons here on Earth, there won’t be any consequences for doing so. (You might go to hell when you die, is all.) Group 1 says that the majority of people just feel that rights are nice to have, but think that a functioning society is possible without rights, and might even be more “efficient”. Ayn Rand says that “society” is nothing more than a number of individuals, and if the individual cannot live in society, then there can be no society. Ayn Rand’s concept of individual rights holds that they are necessary for the individual person to live in a social context, and that that “society” is only good to the extent that it is beneficial for the individual to live in it.

In essence, both groups today are partly right and partly wrong. Group 2 is right that group 1 seems to have no basis for rights other than the whim of the majority. Rand’s conception of rights isn’t “whim”, but the “law of nature”, i.e., the law of identity. Human beings are what they are -they have a certain nature. If they are going to live in a social environment, then others must respect their life and property by refraining from the use of force “as an initial matter”. I say “as an initial matter” because once a specific individual has demonstrated with a sufficient level of certainty that he will not refrain from the use of force to deprive others of their life or property, then force can and should be used in retaliation.

A society that tends not to respect rights will not exist for long because the individuals that comprise it cannot survive. Rights have a functional basis in the facts of reality.

Group 1’s criticisms of Group 2 has merit insofar as group 2 can present no evidence for their “transcendent” basis for individual rights. I’d also note that regardless of whether Group 2 is right about the existence of god, if they believe that reality has a certain nature, and to the extent that they want to live, then Rand’s conception of rights should also be persuasive to them, and can form the basic intellectual foundation upon which a government can be constructed, regardless of whether we all agree about the existence of a creator.

“Natural Born Citizen”

This whole thing about whether Ted Cruz is a “natural born citizen”, from the standpoint of original meaning, is fairly interesting. (I do not know, one way or the other.) I started looking at some stuff on line, and it quickly became apparent it would take a good bit for research, and I just don’t know that I care enough. I did look at Blackstone, who would have been considered authoritative at the time of the drafting and ratification of the Constitution, and he offers a definition of “natural born subject”, for purposes of British law at the time:

“Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. ”

He then later says that some persons born outside the dominions of the crown would still be considered “natural born subjects”:

“When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions:…”

He then seems to imply that at common law one such exception were persons born to ambassadors of the King while abroad:

“Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador.”

Blackstone also seems to say that merchants’ children born abroad were also considered to be “natural born subjects” at common law:

“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants.”

Additional disabilities against being a “natural born subject” of the King were also removed by statute:

“But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”

So, according to original meaning, if Blackstone would have been authoritative, then any person born outside the United States to a parent (specifically a father) who was a natural-born subject, was also a “natural born subject” themselves.

In the case of Ted Cruz, it was his mother that was a US Citizen at the time of his birth. So the question is: Assuming Blackstone is authoritative on original meaning and that my interpretation of Blackstone is correct, then would a person born from a mother, not a father, who was a US Citizen be considered a “natural born citizen”?

What Is Wrong With Prohibiting Persons on the “No Fly” List From Purchasing Guns

The Senate rightly voted down an attempt to allow the Attorney General to prohibit people on the so-called “no fly list” from purchasing a firearm. Let’s leave aside for the moment the fact that I don’t think this would stop any would-be terrorist from getting a gun (see Paris, France). Let’s also leave aside the fact that the two jihadists in San Bernardino California were not on the “no fly list”, so this law would have made no difference. Regardless of that, this is a terrible violation of Constitutional rights. The Second Amendment guarantees an individual right to own a gun. This important liberty cannot be taken away by the government without due process of law, and that due process must be adequate.

An examination of the proposed statute, contained in an Amendment to an unrelated bill, shows that the “due process” included was very weak. This provision starts near the bottom of page Page S8401 of the proposed Amendment:

“(b) In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A of this title or has made a determination regarding a firearm permit applicant pursuant to section 922B of this title, an action challenging the determination may be brought against the United States. The petition shall be filed not later than 60 days after the petitioner has received actual notice of the Attorney General’s determination under section 922A or 922B of this title. The court shall sustain the Attorney General’s determination upon a showing by the United States by a preponderance of evidence that the Attorney General’s determination satisfied the requirements of section 922A or 922B, as the case may be. To make this showing, the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security. Upon request of the petitioner or the court’s own motion, the court may review the full, undisclosed documents ex parte and in camera. The court shall determine whether the summaries or redacted versions, as the case may be, are fair and accurate representations of the underlying documents. The court shall not consider the full, undisclosed documents in deciding whether the Attorney General’s determination satisfies the requirements of section 922A or 922B.”. https://www.congress.gov/amendment/114th-congress/senate-amendment/2910/text

This proposed “due process” has no automatic hearing, just the right to file a petition. A person’s right to a hearing is waived after 60 days of “actual notice” -presumably forever. It contains no right to even examine the documents being used against petitioner. Documents are examined by a judge “ex parte” -which means without the defendant/petitioner present. It uses a “preponderance of the evidence” standard instead of “beyond a reasonable doubt”, like in a criminal case. I am not even sure it allows for one to call witnesses in one’s favor or to confront one’s accuser in court, as required under the 6th Amendment. It’s about like the standard the Department of Motor Vehicles would uses to deprive someone of their driver’s license, which is not a Constitutionally protected right.

The “no fly list”, even as applied to its original intended purpose -flying on an airplane- is fraught with problems and possible Constitutional violations. (See https://www.aclu.org/news/aclu-files-lawsuit-challenging-unconstitutional-no-fly-list)  The ACLU has argued that even its original intended purpose is unconstitutional. Furthermore, when it is applied to something like owning a gun, which is a specifically enumerated right under the Bill of Rights, then it is just doubling down on what was already probably a bad law to begin with.

If this law had passed, what would have been next? Imagine the following hypothetical scenario: What if the government decided to deny anyone on the no-fly list a computer because terrorists use computers to meet each other and conspire to commit their crimes? This would clearly have First Amendment freedom of speech and freedom of association implications, and the level of due process required to restrict that freedom are on a par with what would be required before you can send someone to prison. Similarly, the due process required prior to restrict someone’s Second Amendment rights, must be on an equal level.

“Structural” versus “Declaratory” Provisions of the Constitution and Originalism

For purposes of this paper, the provisions of the U.S. Constitution can be broken down into two different major categories. The first category of provisions are “structural”. These include such things as Article I, Section 8, which sets forth the powers of Congress, all of Article II, some of Article III, Article V, and Article VI. (This is not an exhaustive list.)

These structural provisions of the US Constitution set forth things like how a bill becomes a law; that the Congress will be divided into a House and a Senate; how congressmen and the President are elected; how long congressmen, Supreme Court Justices, and the President serve; how treaties are ratified, etc. Most of these “structural provisions” could have been arranged differently. For instance, it is conceivable that the Founders could have decided to have a unicameral legislature (one chamber of Congress instead of two), or that they could have made the President’s term of office 6 years instead of 4.

Most of these “structural provisions” were based in political expediency, or in the historical and social circumstances of the states at the time the US Constitution was ratified. For instance, at the Constitutional Convention, there were two competing “plans”. These two plans represented differing interests of low-population states versus high-population states, as well as other interests of the time.

The first plan, put forth by James Madison and Edmund Randolph, became known as “the Virginia Plan”. It called for a much more unified Republic with state sovereignty significantly reduced by allowing the national legislature to veto all state laws.[1] By way of contrast, the Constitution actually adopted just implicitly says that state laws that are contrary to the Constitution are void under the Supremacy Clause of Article Six, Clause 2, but it does not empower Congress with a cart-blanche veto power over any and all state laws.

Large states like Virginia supported this plan because it would give high-population states more power in the national legislature. Low-population states preferred the New Jersey Plan, which would have created a single unicameral national legislature that kept the one-vote-per-state representation found under the Articles of Confederation. With the New Jersey Plan, small states could more easily prevent large states from enacting legislation that would have trampled on their sovereignty as states. The New Jersey Plan was more of a modification of the existing Articles of Confederation, while the Virginia Plan threw out the Articles altogether.

At the end of the day, neither the Virginia Plan nor the New Jersey Plan was enacted. The document eventually adopted regarding legislative power was reflected in the “Connecticut Compromise”. It retained the bicameral legislative features of the Virginia plan. Also like the Virginia plan, in the lower house, there would be proportional representation based on state population. However, the upper house would have two representatives per state, thereby ensuring that low-population states could not be dominated by high-population states in the new Congress.[2]

The other major category of provisions that can be found in the US Constitution are what I call the “declaratory provisions”[3]. These provisions don’t set forth the powers of government or government officials, or how government is to operate. Instead, they state certain fundamental rights that citizens or residents of the United States possess. Most of these “declaratory provisions” are found in the first Ten Amendments to the US Constitution. For instance, Amendment I says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

These first ten Amendments reflect the Enlightenment tradition of individual rights[4], and were adopted in order to placate the anti-federalist critics of the Constitution. At the time, some state constitutions included a bill of rights[5], and the English legal tradition, as embodied in the Magna Charta, often had a declaration of rights. During the debates leading up to the ratification of the US Constitution, Madison and Hamilton responded to anti-federalist complaints about the lack of a declaration of rights in the proposed document by saying it was unnecessary, and that such a declaration could actually be dangerous to the rights of individuals.

Hamilton’s opposition to a bill of rights can be found in Federalist Number 84:

The most considerable of these remaining objections [of the Anti-Federalists] is, that the plan of the convention contains no bill of rights….I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. (Emphasis added, Federalist Number 84, http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html )

In essence, Hamilton said that there was no need for a declaration of the right of freedom of the press in the new Constitution because the Constitution did not authorize the Federal government to regulate the press at all. Article I, Section 8 sets forth the scope of Congress’ powers, meaning that unless a power is granted to Congress under this section, then it has no power to act. Since there is no power to regulate the press, Congress does not have the power, and it can make no law regarding press or speech.

Additionally, Hamilton goes on in the above-quoted text to note that a bill of rights provision stating that Congress can make no law regarding the freedom of the press could be construed as meaning that Congress has this power –that it might give a “…plausible pretence for claiming that power…” In other words, a bill of rights for Hamilton and Madison, could actually be dangerous because someone might assume that Congress has the power to regulate speech and press, when, under Article I, Section 8, it has no such power.

At the end of the day, Hamilton, Madison, and other supporters of the new Constitution compromised on the issue of a Bill of Rights. In order to avoid the problem of “constructive powers” being implied to the new Federal government under the Bill of Rights, the Ninth and Tenth Amendments were probably included:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[6],[7]

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In other words, the 9th and 10th Amendments ensure that the people retain all of their rights, not just the ones set forth in the Constitution, and that the Federal government only has the power to act insofar as it has been delegated powers under the Constitution.

In order to properly understand this distinction between “structural” provisions on the one hand and “declaratory” provisions on the other, it is necessary to move into the realm of political philosophy and philosophy of law. Specifically, it must understood what a constitution is, and what purpose it serves.

Human life is not guaranteed. If one wants to live, then one must take certain actions. Such actions are a necessary condition for living. Man posses a rational faculty that allows him to comprehend laws of nature and to adjust his natural environment, in accordance with those laws, to maximize his chances of survival. For instance, someone recognizes that it is human nature to require protection from the snow, the rain, and the cold. A man’s chances of survival are maximized when he is protected from certain weather conditions. He also notices that certain types of plants and trees, when properly harvested and arranged, can provide a barrier against the weather. So, he gathers naturally occurring elements like trees, rocks, and dirt, and combines them to build a house. Another man recognizes that he needs nourishment, and he learns to build weapons to hunt the lesser animals with, or he makes a plow and plants seeds to grow crops.

Food, shelter, clothing, and other values are necessary for man’s survival, and are typically not found in nature, or are not sufficiently plentiful to sustain man’s life. As his technology and scientific knowledge grows, man’s capacity to improve his life grows. Men have gone, over several millennia, from living in caves to building rockets to the Moon -all thanks to man’s capacity to recognize reality, formulate general principles of cause and effect, and to act accordingly. Man’s mind allows him to recognize cause and effect relationships amongst entities that exist, to recognize his own nature as a living being and a rational animal, and to take action aimed at his survival.

Just as other inanimate entities have a certain nature, so does man. Man is the “rational animal”. He is a living organism of a certain kind and, in principle, he must therefore act in accordance with that nature if he wants to survive. A man cannot live like a plant, by merely sitting and absorbing nutrients from the sun and the soil. A man must engage in a process of thought, and create the wealth necessary for his survival. Men also have the capacity to engage in collaborative endeavors amongst themselves that benefit all participants. Men can trade with other men, which means that individual human beings gain from certain types of associations with each other. If men are going to benefit from each other, they must recognize that each individual living in society acts to provide the things necessary for his survival, if he wants to live. All men must recognize the moral principles defining and sanctioning an individual’s freedom of action in a social context. These moral principles are known as individual rights. Although the list is not exhaustive, fundamental individual rights include the right to live and the right to private property. The right to live is the ultimate individual right, and forms the basis of all rights.

Although most choose to live as traders and producers, some human beings choose not to think and produce their own values. Some will attempt to take what others have produced by means of force. Such people are known as “criminals”. The criminal attempts to gain values from others not by voluntary trade, but by means of force or the threat of force. A criminal substitutes reason and persuasion for force in an effort to gain values from others, or to destroy the values of others. Criminals are force-initiators. They use their fists or a weapon, or they threaten the use of force, to gain what others have produced without their voluntary consent.

If men are to live together in society, then they must create an institution or collaborative agreement to protect those who want to live by means of reason, persuasion, and trade from those who wish to destroy or take the values of others by means of physical force. Although in an emergency, each individual has a right to use force in retaliation and to defend himself from a force-initiator, a formal institution to stop such force-initiators, with objective rules of procedure and fair notice of what is prohibited, is necessary once a society gets beyond a certain point in size and geographic scope. This organization is known as “government”.

There are various reasons why government is necessary if rights are to be protected, and this paper is not meant to be an exhaustive critique of the political philosophy of anarchism, but some of the major reasons why government is essential for the protection of individual rights will be discussed prior to turning to constitutional law.

Without a central governmental authority, it is difficult for others to know whether a person using force in retaliation against a criminal is truly acting in retaliation. Concretely, imagine that a criminal has stolen a person’s property. The victim then goes to the criminal’s house, and holds him at gunpoint while recovering his stolen property. If others see only the victim holding the criminal at gunpoint, how will they know that this is not a robbery? If the criminal’s family or friends see this, and know nothing about the circumstances, then they might mistakenly believe that the victim is the force-initiator, and use force to stop what they perceive as a robbery. This in turn would lead the victim’s family and friends to counter-retaliate, and society could devolve into gang-warfare.

By instituting formal rules of procedure in this situation, misunderstandings can be minimized. The victim of a burglary goes to a socially recognized authority, the police, and files a complaint. The police then investigate, while ensuring that the rights of the accused are respected. Another branch of the government, the courts, then make a determination, in accordance with pre-established rules of evidence and procedure, as to whether the property was in fact stolen, and issue a ruling.

Another important function that only a government can serve is to provide all members of society with prior notice of exactly what actions are violations of individual rights. Citizens elect representatives who then gather periodically and promulgate rules prohibiting certain actions that would violate individual rights. This representative body is generally called a “legislature”, and it sets forth the elements of crimes. For instance, at English Common Law, murder was defined as: (1) unlawful, (2) killing, (3) of a human, (4) by another human, (5) with malice aforethought. The legislature promulgates a statute which sets forth each of these elements, and they must all be proven by a certain standard of proof in a given circumstance before one can be shown to be guilty of the crime of “murder”.

Governments are instituted among men and derive their powers from the governed, who delegate some of their right to retaliatory force to that institution so that individual rights can be protected, and everyone can be assured that their own rights will be protected if they, or their friends or family, are ever accused of a crime. Government isn’t there just to do justice, but to show justice, and only justice, being done. It is there to assure everyone in society that force is only being used to protect individual rights. But, this raises a new problem. How to ensure that those acting on behalf of government –the police, the military, the courts, and the legislature- do not themselves become force-initiators? If the fundamental powers of government are written down in a document, then it is clear what actions government officials can take, and the exact procedures for taking such actions. Any power not granted by this written document is not a power delegated to the government by “the people”. This is the purpose of a written constitution. In other words, a written constitution can be defined as the fundamental charter delegating the peoples right to the retaliatory use of physical force to a central authority. Only the powers granted to government agents in a written constitution are authorized.

The difference between these two types of provisions found in the US Constitution suggests that they have different origins and should be interpreted in accordance with different methodologies. As was already stated, the “structural” provisions of the Constitution represent decisions at the time the particular document was adopted. They represent the political and social circumstances at the time of ratification, and might be significantly different if circumstances had been otherwise. The “declaratory” provisions tend to be more “abstract”, “timeless”, or “universal”. For instance, a right to freedom of speech and the press is seen as essential to all human beings everywhere, and under all circumstances, while the creation of an upper house of the federal legislature whose members are chosen by individual state legislatures (the Senate) is more a matter of social, economic, and political circumstances at the time of adoption. In some other nation, with some other set of historical circumstances, a unicameral legislature might make more sense. The structural provisions represent the compromises that made the union possible. The structural provisions have a role to play in ensuring rights are protected via such things as separation of powers and checks and balances, but they presuppose the rights that they protect.

Given what has been said about the strong role of historical, political, and social context at the time they were ratified, the structural provisions of the US Constitution should be interpreted in accordance with that historical, political, and social context. In other words, the structural provisions of the Constitution should be interpreted in accordance with original meaning, as described by Justice Antonin Scalia and others.[8] The reasoning here is fairly simple: (1) A constitution is the fundamental charter delegating the people’s right to the retaliatory use of physical force to a central authority, and only the powers granted to government agents in the written constitution are authorized; (2) “the people” currently living may not have ratified the constitution, but they are free via its amendment process to alter it at any time; (3) since the currently living have chosen not to amend the enacted constitution, they must still prefer its original terms. When judges interpret these structural provisions of the Constitution, they should therefore look to original meaning on the assumption that it is what the current generation of the body politic prefers. Since most of these provisions have to do with the powers and structure of government, it would undermine the idea of “the consent of the governed” for judges to reinterpret, for instance, how a bill becomes a law. It would abrogate the consent of the governed if the courts suddenly decided that “times had changed”, and only a majority of Senators had to vote for a bill that was signed into “law” by the President, and by-passed the requirement that a majority of the House of Representatives also vote in favor.

Using “original meaning” makes no sense with regard to the “declaratory” provisions of a constitution because these provisions describe universal individual rights, and the protection of rights is the very purpose of government, and a constitution, in the first place. Individual rights are conceptually and logically more fundamental than any written constitution, and form the underlying moral foundation for a written constitution. The source of rights is not divine law, and it is not Congressional law. As discussed, rights are moral principles defining and sanctioning an individual’s freedom of action in a social context. They ensure that the individual is free to live in society. People have freewill so, they can choose not to respect individual rights. However, when the majority of a society fails to respect rights, it will disintegrate. Only a society that respects rights to life, liberty, and property can remain functional long-term, because it is the only society that leaves people free to think and act on their own best judgment in the maintenance of their individual lives.

[1] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter XII, “The Worthy Against the Licentious”, Section 1, “The Federalist Revolution”: “Not only should the national government have a ‘positive and complete authority in all cases where uniform measures are necessary,’ as in finance, commerce, and foreign policy, but it should have ‘a negative, in all cases whatsoever, in the Legislative acts of the States, as the King of Great Britain heretofore had.’”

[2] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter XIII, “The Federalist Persuasion”, Section 7, “The Redefinition of Bicameralism”: ”With the ‘Connecticut compromise,’ which provided for two senators from each state, the Federalists found a justification for the upper house that they had not anticipated. ‘The people will be represented in one house, the state legislatures in the other,’…The Senate now became a means of restraining ‘the large states from having improper advantages over the small ones.’”

[3] Hamilton also appears to make this “structural” versus “declaratory” distinction in the Federalist Papers: “Independent of those, which relate to the structure of the government, we find the following: Article I. section 3. clause 7. “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Section 9.” http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html

[4] The Meaning of the American Revolution, Dan Lacy, Chapter 1, “The Eighteenth-Century World”: “The general body of thought we call Newtonian was most effectively applied to social issues by another Englishman, John Locke (1632-1704)…they dominated political thought for a century to come and provided the philosophical basis for the American Revolution.”

[5] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter VII, “Law and Contracts”, Section 2, “The Contract of Rulers and Ruled”.

[6] James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5. 6/26/2015. http://oll.libertyfund.org/titles/1937#Madison_1356-05_877: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

[7] James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5. 6/26/2015. http://oll.libertyfund.org/titles/1937#Madison_1356-05_898: “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may [385] be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [See above footnote for this clause.]”

[8] Section 70, “The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted”. In: Scalia, A. and Garner, B. (2010) Reading Law: The Interpretation of Legal Texts, “Preface”. St. Paul: Thompson/West Publishing.

I Just Realized There is No Authority Under The Constitution for the Feds to Impose a 21-day Quarantine on Persons From Africa

In a previous blog post, I wrote that the President and the Federal government should impose a 21-day quarantine on persons entering the country from areas of Africa stricken with ebola. I now no longer think the Federal government has the power to do this under the Constitution. In fact, there is no Constitutional authority for the Federal government to restrict entry into the United States at all.

The Constitution is a charter of enumerated powers for the Federal Government. It lists what powers are expressly carved out of state sovereignty( http://en.wikipedia.org/wiki/Enumerated_powers ) If it does not list a power as belonging to the Federal government, then such power is reserved for the states. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution)

Article I, Section 8 lays out Congress’ powers, and it says nothing about quarantine. In fact, it appears to give the Federal government no power to regulate entry into the country at all, except for the purposes of imposing duties (Art. I, Sec. 8-1) It also says Congress can make uniform laws of naturalization (Art. I, Sec. 8-4), but that is just how people become citizens -not whether they can enter the country. That means the Federal government must be relying on the “catch-all” of Art. I, Sec. 8-3, (“To regulate Commerce with foreign Nations…”), but I fail to see how people entering the country is “commerce” under original meaning. It now appears to me that Congress has no power to restrict entry by people into the country at all -assuming we are going to actually take the Constitution seriously, which I do. 

I did some further research online, and discovered this article: http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html It basically seems to say that the courts have found an “inherent power” in the Constitution that allows the Federal government to restrict entry into the country. From the stand-point of original meaning, this seems as problematic as the “penumbras and emanations” that supposedly give rise to a right to privacy in the Constitution (http://en.wikipedia.org/wiki/Griswold_v._Connecticut). I don’t see how Scalia, Thomas, Bork, or other originalist scholars could look at themselves in the mirror in the morning and claim some sort of unenumerated “inherent power” of the Federal government to restrict entry into the country.

Does this mean that quarantine cannot be imposed? I think it must occur at the state level. Each state government must establish its own quarantine laws, consistent with the Fourteenth Amendment’s due process clause.(http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution) As long as some sort of hearing with objective rules of evidence and sufficient proof of a threat to others occurs, then this is probably sufficient. The additional implication of my new understanding of the Constitution, which I won’t get into too much here, is that each state would appear to have the power to set its own rules for entry into that state by immigrants from other countries. This might not be the result that originalists like Scalia would like, but it is what the Constitution seems to require under original meaning.

The Epistemology of Originalism

The Constitution embodies certain philosophic, historical, and legal traditions.  These included the Enlightenment as a cultural backdrop; the ideas of John Locke, Montesque, and Adam Smith; English legal and political systems; and the experience of the 13 original states under the Articles of Confederation.[1]
Some of the ideas and institutions embodied in the Constitution may have also been novel, such as the Supremacy Clause. This meant that questions regarding the proper sphere of the new Federal Government would not be resolved as political problems of the new Congress or of the State Legislatures, but as legal problems that a court must decide in hearing a case between private parties.[2] Interpreting the provisions of the Constitution would often ultimately lie with how Federal judges chose to interpret that document.  But, how should judges go about interpreting it?  By what methodology?
The meaning of key terms in the Constitution are often the subject of debate and dispute.  For instance, the Second Amendment contains the words “…the right of the people to keep and bear Arms, shall not be infringed…”  However, those words are prefaced by: “A well regulated Militia, being necessary to the security of a free State…”, and to the modern ear, a “militia” means something like the Army or the National Guard, and “regulated” means something like “controlled by government” or “restricted by law”.  Proponents of gun control seize on the (arguably) modern meaning of these terms, and say that the Second Amendment is referring to the right to keep and bear arms as a member of the armed forces or a state’s national guard.  Under this interpretation, the Second Amendment does not guarantee an individual right to keep and bear arms.  It is a mere “collective right”.
Others say that this method of interpreting the Constitution is incorrect.  They say that you must look to the “original public meaning” of the terms “militia” and “well regulated”, and that they meant something very different at the time they were ratified.  This “originalist” interpretation of the Second Amendment holds that the Second Amendment enshrines an individual right of private citizens, unconnected to any organized military or law enforcement, to keep and bear arms, because that is how the average person at the time the Second Amendment was adopted would have understood those words.
Another example of a disputed phrase in the Constitution is the Eighth Amendment prohibition on “cruel and unusual punishments”.  To a modern American, forms of punishment like flogging or the stocks would probably be considered “cruel and unusual”.  Many would also argue today that the death penalty is “cruel and unusual”.  The originalist says the modern understanding of those words is irrelevant.  What matters is the “original public meaning” of the phrase “cruel and unusual” when it was adopted into the Constitution.  The originalist notes that at the time the Eighth Amendment was penned, the stocks and flogging were common, to say nothing of the death penalty.  Therefore the stocks, flogging, and the death penalty is not what is meant by “cruel and unusual punishments”.
Part of the appeal of the originalist view of Constitutional interpretation is the claim that “words mean things” and that the “Constitution means what it says”. In fact, this idea tends to be what its proponents put forward to the public as the meaning of originalism, and as the reason why more originalist judges should be appointed to the bench.  An example of this “public meaning” of originalism could be seen with the editorial commentary arising around the US Supreme Court’s decision in District of Columbia v. Heller[3].  In this landmark ruling, the Court held that the Second Amendment to the US Constitution did embody an individual right to keep and bear certain firearms, under certain circumstances, subject to certain legal restrictions.
In support of the Heller decision, a noted Constitutional scholar published an Op-Ed titled: “News Flash: The Constitution Means What It Says”.[4] The author is a Professor of Constitutional Law at Georgetown Law School, so his presentation to the public of what originalism means is significant, especially the title of his Op-Ed, since it is what most people will read.  The title of the Op-Ed implies:  The Constitution uses specific words.  Those words have a specific and definite meaning, and, implicitly, judges should follow that specific and definite meaning.
Another example of the “public face” of originalism is what current US Supreme Court Justice Antonin Scalia has said in public speeches and interviews on the subject of originalism: “‘The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that’s the end of it,’ Scalia said.”[5] Justice Scalia has made the assertion that the Constitution “means what it says” on several occasions, and he asserts that this is the essence of the originalist viewpoint: “[Interviewer:] Had you already arrived at originalism as a philosophy?  [Scalia:] I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change…”[6]
Scalia clearly says that originalism stands for the proposition that “words have meaning”, and that their meaning is definite and immutable over time.  But, is this what originalism actually stands for?  When one begins to study the underlying reasoning being put forward by the originalists in greater detail, it is not at all clear that this method of Constitutional interpretation is necessarily consistent with the idea that “words mean things”.  It may not, in fact, be the case that all originalists actually believe that concepts have a definite meaning.
            Before analyzing the originalist position, it will be useful to think about the phrase “Words have meaning”.  What exactly does that mean?  A “word” is commonly defined as: “…a speech sound or series of speech sounds that symbolizes and communicates a meaning usu. without being divisible into smaller units capable of independent use…a written or printed character or combination of characters representing a spoken word…”[7]
Words are the symbols that represent a concept.  For instance, the words “dog” in English and “perro” in Spanish both mean the same thing.  They both denote the same concept.  But what does the concept refer to?  This points to the fact that when people say “words mean things” what they really are saying is “concepts mean things” –that concepts refer to something definite.  However, if words denote concepts, then where do the concepts come from?  What do the concepts refer to?  In the history of philosophy, this is known as the problem of universals:
“The problem of universals is the problem of the correspondence of our intellectual concepts to things existing outside our intellect.  Whereas external objects are determinate individuals, formally exclusive of all multiplicity, our concepts or mental representations offer us the realities independent of all particular determination; they are abstract and universal.  The question, therefore, is to discover to what extent the concepts of the mind correspond to the things they represent; how the flower we conceive represents the flower existing in nature; in a word whether our ideas are faithful and have an objective reality.”[8]
“The issue of concepts (known as ‘the problem of universals’) is philosophy’s central issue.  Since man’s knowledge is gained and held in conceptual form, the validity of man’s knowledge depends on the validity of concepts.  But concepts are abstractions or universals, and everything that man perceives is particular, concrete.  What is the relationship between abstractions and concretes?  To what precisely do concepts refer in reality?  Do they refer to something real, something that exists –or are they merely inventions of man’s mind, arbitrary constructs or loose approximations that cannot claim to represent knowledge?”[9]
Various answers have been put forward over the centuries to answer the issue of concepts. “Realism” and “nominalism” are two popular explanations for what, if anything, concepts refer to in reality.  “Extreme realism” represents the view of concepts held by Plato:  “According to this view there are universal entities existing in an extra-physical realm.  The ideas in the mind correspond to these entities.  The objects in the physical world reveal them.  Thus there are universal entities both within and without the mind.  Therefore, the mental entities are real.”[10]
Another version of realism is the Aristotelian version:  “The ‘moderate realists,’ whose ancestor (unfortunately) is Aristotle, who hold that abstractions exist in reality, but they exist only in concretes, in the form of metaphysical essences, and that our concepts refer to these essences.”[11]
Nominalists attempt to present an alternative to the realist viewpoint:
“At the opposite extreme from this view [the extreme realism of Plato] is nominalism.  Nominalism models the idea on the thing.  Since the thing is particular, the idea is particular.  There are no general ideas because there are no general things.  What are called general ideas, or concepts, are merely names, nomina, or even noises, flatus vocis.  Thus there are no universal entities either within or without the mind.  Therefore, universal entities are not real, in fact they are not even fictions, for there are no such things even within the mind.”[12]
Nominalists hold that all of our ideas are only images of concretes, and that abstractions are merely ‘names’ which we give to arbitrary mental groupings of concretes.[13]
            In her book “Introduction to Objectivist Epistemology”, Ayn Rand sets out an alternative explanation for concepts that is different from both Realism and Nominalism.  Rand disagrees with Plato that our concepts correspond to entities that exist in some supernatural or “extra-physical” realm.  In her philosophy the, “universe” means the sum total of all existence, so there can be no realm that is somehow “outside” the universe.  Furthermore, all of our knowledge is based on sensory experience and reasoning from our sensory experience.  No realm of “pure forms” has ever been perceived, and there is no mystical insight or “revelation”.[14] She also disagrees with the “moderate realism” of Aristotle:
 “…Aristotle held that definitions refer to metaphysical essences, which exist in concretes as a special element or formative power, and he held that the process of concept-formation depends on a kind of direct intuition by which man’s mind grasps these essences and forms concepts accordingly.  Aristotle regards ‘essence’ as metaphysical; Objectivism [Ayn Rand’s philosophy] regards it as epistemological.”[15]
Rand also does not claim that concepts are merely names that we give to arbitrarily grouped concretes in our minds, as the nominalists claim:  “The nominalist and the conceptualist schools regard concepts as subjective, i.e., as products of man’s consciousness, unrelated to the facts of reality, as mere ‘names’ or notions arbitrarily assigned to arbitrary groupings of concretes on the ground of vague, inexplicable resemblances.”[16]
A key distinction from nominalism in Rand’s philosophy is the fact that she regards concept formation as necessary for living.  In other words, the only “reason” that human beings engage in reasoning is because human life would be very difficult, if not impossible, if we didn’t:  “Since everything man needs has to be discovered by his own mind and produced by his own effort, the two essentials of the method of survival proper to a rational being are: thinking and productive work.”[17]
“The virtue of Rationality means the recognition and acceptance of reason as one’s only source of knowledge, one’s only judge of values and one’s only guide to action…It means a commitment to the fullest perception of reality within one’s power and to the constant, active expansion of one’s perception, i.e., of one’s knowledge.”[18]
“Thinking requires a state of full, focused awareness.  The act of focusing one’s consciousness is volitional.  Man can focus his mind to a full, active, purposefully directed awareness of reality –or he can unfocus it…a consciousness able to direct the actions and provide for the survival of a human being…”[19]
For Ayn Rand, the purpose of thinking is human survival.  One is considered to be “in a state of full, focused awareness” if one is purposefully directing one’s awareness of reality, and “purposeful” ultimately means aimed at the survival of a human being.  Unlike the nominalists, since Rand regarded knowledge as necessary for living one’s life, it ultimately serves that purpose, and a mere random grouping of concretes in one’s mind without reference to that purpose would be self-destructive.  Rand would distinguish valid concepts from invalid, or arbitrary, concepts by the fact that reality is what it is, and by the fact that human beings, an aspect of reality, also are what they are.  A human being who wants to live, must do so by a specific method that is in accordance with his nature.   That method of survival incudes the need to form concepts in accordance with the nature of the human mind, the nature of reality, and the thinker’s life, so that those concepts can further his life.  Rand regards concepts as serving a purpose that can serve as a standard of proper concept formation, while the nominalists regard the process as purposeless, or “arbitrary”.
The actual mental process that occurs in concept formation is described in great detail in Rand’s book Introduction to Objectivist Epistemology, and it is difficult to do it justice here.[20] Rand starts out by describing something that exists, an “existent”, and the three stages that perceiving an existent undergoes during concept formation.  First an existent is viewed as an “entity”, which is like a child’s awareness of things.  Second, an existent is viewed as having an “identity”, which is awareness of specific particular things.  A child recognizes and distinguishes a particular existent from the rest of his perceptual field, thereby perceiving its “identity”.  The third stage in the mind of a human being consists of grasping relationships among entities by grasping similarities and differences of their identities.  The “implicit” concept “entity” is transformed into the “implicit” concept “unit”, which is an existent regarded as a separate member of a group of 2 or more similar members.[21]
Prior to regarding existents as a separate member of a group of 2 or more similar members (as units), all that exists in the mind of the perceiver of an existent is a “percept”. “A percept is a group of sensations automatically retained and integrated by the brain of a living organism.  It is the form of percepts that man grasps the evidence of his senses and apprehends reality.  The base of all of man’s knowledge is the perceptual stage.”[22]
Essentially, a “percept” is like a mental image of an actual, concrete thing that one perceives, held in one’s mind.  If someone recalls their favorite dog in their mind, then this is a percept (or, at least, the memory of a percept).  One recalls the actual existent that one has perceived, with his particular shape, his particular color, his particular size, and numerous other characteristics as a complete whole individual –as that particulardog.  Prior to becoming conceptual, very young children exist on this perceptual stage, which appears to be the highest level of consciousness held by most vertebrate animals.  Eventually young children learn to abstract –to mentally separate attributes, motions, or numbers from entities.[23]
Once particular existents are viewed as units, the conceptual stage has been reached: “With the grasp of the (implicit) concept ‘unit’ man reaches the conceptual level of cognition…”[24] Rand initially defines a “concept” as a “…mental integration of 2 or more units which are isolated according to specific characteristics and united by a specific definition.”[25] The act of isolation involved is a process of abstraction.  It is a selective mental focus that takes out or separates a certain aspect of reality from all others.[26] Unlike a “percept”, which is a mental image or mental representation of particular existents observed with one’s sense organs, “…the uniting involved in concept formation is not a mere sum, but an integration, i.e., a blending of the units into a single, new mental entity.”[27]
What is the role of a “word” in Ayn Rand’s description of concept formation?  “Words transform concepts into (mental) entities…”[28] Language isn’t just necessary for human communication according to Ayn Rand.  This can be understood by realizing that even when a person is completely alone, he still uses language in a sort of “inner monologue” within his mind as he thinks or tries to solve a problem.  This “inner monologue” is typically silent, in which one imagines to hear the words one is thinking in one’s mind.  But, some people even literally “talk to themselves” aloud while alone and thinking.  Rand would likely say that this is because language serves the purpose of providing a perceptual concrete that can act as a symbol in one’s mind representing the concept.  In order for a concept to be used as a single unit, “…the enormous sum integrated by a concept has to be given the form of a single, specific, perceptual concrete, which will differentiate it from all other concepts.”[29]
Rand gives two examples of concept formation in Chapter 2 of her book.  The concept for “length” and the concept of “table”.  The pattern in her description of how these two concepts are formed is essentially the same, but each example appears to be used to reveal different aspects of the process.  A key aspect of that process is “measurement”, in which there is a mental isolation of a distinctive characteristic of observed entities that all have that characteristic.  There is a mental differentiation of 2 or more entities from others by means of a characteristic they have in common with the entities they are mentally isolated from.[30]Measurement is the “…identification of a relationship –a quantitative relationship established by means of a standard that serves as a unit.”[31] The mental differentiation of 2 or more entities establishes a quantitative relationship by means of a standard that serves as the unit. 
For instance, when forming the concept “dog”, one perceives 2 or more particular dogs and observes that they have certain characteristics, such as shape, size, and behavior, in common, which is the identification of a relationship amongst the particular dogs observed.  The observed dogs are also mentally isolated from other perceived entities, such as cats, birds, and people, based on the shape, size, and behavior that they have in common with each other and that are different from the other perceived entities.  Rand defines the characteristics on which units (the dogs) are differentiated from other perceived entities (like cats and birds) as the “conceptual common denominator”, which is the commensurable “…characteristic(s) reducible to a unit of measurement, by means of which man differentiates two or more existents from other existents possessing it.”[32] Birds, cats, and dogs all have some type of shape, size, and behavior, but dogs have a particular distinguishing set of characteristics that represent “…a specified category of measurements within the ‘Conceptual Common Denominator’ involved.”[33] In the case of forming the concept “table”, Rand says that the CCD is shape, which is a characteristic that tables, chairs, and sofas all have in common.[34] In the case of forming the concept “dog”, it would probably be more than just “shape”, because grasping the difference between dogs on the one hand and wolves or coyotes on the other (assuming one had perceived wolves and coyotes) would require an understanding of the size differences between those animals as well as the differences in behavior between wolves and dogs.  For instance, wolves behave in a manner that is more “vicious” or “aggressive” and “predatory” than dogs, which have been bred for docility and dependence on human beings.  Additionally, given the wide variety of shapes and sizes in domestic dogs, their behavior tends to set them apart as a distinct group more than those other characteristics, which tend to vary greatly.  (Consider the size and shape differences between a Great Dane and a Chihuahua.)[35]
Rand says that this process of mentally isolating units, such as perceived dogs on the one hand from perceived birds and cats on the other, involves a mental process in which the units (the dogs perceived) are differentiated from others by means of a distinguishing characteristic, which are a specified category of measurements within the conceptual common demonintator[36] – which is shape, size, and behavior in the case of dogs.  These distinguishing characteristics, as already stated, are something like the general “dog-like” shape of dogs (e.g. morphology, claws that do not retract, a tail, four legs), which is different from the “bird-like” shape of birds and the “cat-like” shape of cats, along with the “dog-like” behavior of dogs, such as friendliness towards humans, smelling everything, and wagging their tails when they are glad to see people, etc.  Also, it should be noted that the distinguishing characteristics can exist in any quantity, but they must exist in some quantity.  In other words, in the mind, the characteristic(s) is retained while “omitting” their particular measurements in the observed existents, the particular dogs that were perceived, that form the existential basis of the unit-perspective.
This brief, and hopefully accurate, summation of Rand’s position on concept formation should make it clear that when someone says “words have meaning” what the speaker means by that will depend either implicitly or explicitly on their position on the “problem of universals”.  Do they believe that concepts denote pure “forms” that exist in some other realm, and are grasped by pure mystic insight as Plato did?  Do they believe that the essence of a concept exists in each observed concrete instance of that concept, and is grasped by some ineffable “intuition” (the Aristotelian position)?  Do they simply throw up their hands and say that it’s all just a matter of arbitrary whim as the nominalists do?  Or, do they regard concepts as “…a mental integration of 2 or more units possessing the same distinguishing characteristics with their particular measurements omitted…”[37],  where concepts serve a particular purpose that ultimately serves one’s survival? 
Surprisingly, Justice Scalia, the premier public spokesman on originalism, seems to fall into the nominalist camp regarding the problem of universals:
“I do not suggest that Madison was saying that common-law lawmaking violated the separation of powers. He wrote in an era when the prevailing image of the common law was that of a preexisting body of rules, uniform throughout the nation (rather than different from state to state), that judges merely “discovered” rather than created. It is only in this century, with the rise of legal realism, that we came to acknowledge that judges in fact “make” the common law, and that each state has its own.”[38]
In the above quote, Scalia seems to suggest that there are only two alternatives for understanding the concept of law: The epistemological realist camp (either Platonic or Aristotelian), which is what Scalia thinks the founding fathers believed, or the “modern view”, in which the concept of law is “made”, rather than “discovered” (“legal realism”).  In other words, for Scalia, the concept of law is ultimately arbitrary and purposeless.  Legal concepts have no basis other than human social whim and arbitrary convention.
Furthermore, when you look at the underlying arguments in favor of originalism, they seems like arguments that a nominalist would be very comfortable with.  Nominalists tend to look to social convention when determining the meaning of concepts.  Since the nominalist regards concepts as just arbitrary groupings of concretes in the human mind, with no reason or purpose behind the groupings, the question of why particular concretes are grouped together arises.  The nominalist will typically claim it is just a matter of social convention:
“Denying that concepts have an objective basis in the facts of reality, nominalists declare that the source of concepts is a subjective human decision: men arbitrarily select certain characteristics to serve as the basis (the “essentials”) for a classification; thereafter, they agree to apply the same term to any concretes that happen to exhibit these “essentials,” no matter how diverse these concretes are in other respects.”[39]
“Observe that, while condemning Plato’s mystic view of a concept’s meaning, the nominalists embrace the same view in a skeptic version. Condemning the essence-accident dichotomy as implicitly arbitrary, they institute an explicitly arbitrary equivalent. Condemning Plato’s “intuitive” selection of essences as a disguised subjectivism, they spurn the disguise and adopt subjectivism as their official theory…Condemning Plato’s supernaturally determined essences, they declare that essences are socially determined, thus transferring to the province of human whim what had once been the prerogative of Plato’s divine realm. The nominalists’ ‘advance’ over Plato consisted of secularizing his theory.”[40]
Originalists like Justice Scalia also tend to look to “social convention” when discussing the concept of law:  “Hence the importance, to all of us, of textual meaning.  How is that meaning to be determined?  By convention.  Neither written words nor the sounds that the written words represent have any inherent meaning.  Nothing but conventions and contexts cause a symbol or sound to convey a particular idea.”[41]
Admittedly, Scalia could be saying one of two things here.  It could mean that concepts are an arbitrarily grouping of percepts in the mind, based on nothing but human convention, which is nominalism.  A more charitable interpretation of this quote is that Scalia simply meant that the words that concepts denote are based on nothing but convention.  In other words Scalia could be saying some people refer to the concept “dog” using the English word “dog” while Spanish-speaking people refer to the same concept “dog” with the word “perro”, which is conventional, but the underlying concept has some connection to reality other than mere convention.  (It is also possible that Scalia has simply never considered the distinction between words and concepts, and is confused on the issue.)  However, a Platonist would not disagree that the word that denotes the concept (“dog” in English and “perro” in Spanish) is conventional.  Platonism, nominalism, and any other popular theory of concepts could all agree that the word chosen (“dog” or “perro”) is conventional.  The issue is whether the concept that the words denote is conventional.  If all Scalia meant was that the word chosen is conventional, then no one would disagree with that assertion.  That does not get to the essence of the issue, which is what does the concept refer to, and is there any other basis for it other than mere social convention?  The evidence seems to suggest that Scalia is a nominalist, even if his nominalism is implicit, and he doesn’t fully recognize it.
In addition to a nominalist being comfortable with the originalist position, an originalist would not necessarily disagree with the nominalist position on the issue of concepts resting ultimately on nothing but arbitrary social whim.  This is because originalists ultimately believe that judges should be restrained from overriding “the democratic process” because “democracy” tends to be their political ideal.  Originalism tends to hold “majority will”, another phrase for “social convention”, as a sort of political-philosophical axiom, with no other ethical or political concepts underlying it:
“This belief in a jurisprudence of original intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent is a scheme of government no longer popular; the idea of democracy has suffered.”[42]
“A concept of original intent, one that focuses on each specific provision of the Constitution rather than upon generalized values, is essential to prevent courts from invading the proper domain of democratic government.”[43]
“…the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world.  Or indeed, even more narrowly than that: whether it is demonstrably much better than what JUSTICE STEVENS proposes.  I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process.  It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a varety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor…What is more, his [Justice Steven’s] approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replace history with moral philosophy, but would have courts consider both…And the Court’s approach [which is Scalia’s approach in this case] intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision…”[44]
In essence, the above passages by noted originalist jurists all reflect the idea that originalism is the method of Constitutional interpretation most consistent with the concept of “democracy” or “majorty will”.  An originalist judge will only strike down legislation if it can be shown that the legislation violates “majority will”, and the only way that can be shown is if it contradicts an express clause of the Constitution.  To think about it another way, the originalist believes that the Constitution, as originally enacted, represents the primary will of the people.  The originalist recognizes that the Constitution was enacted by people long dead, but to him, the fact that the currently living have the power to amend the Constitution -and choose not to- means that its provisions still represents current majority will.  Since the current majority could amend the Constitution, the originalist judge can safely assume that if they haven’t, then the majority does not recognize such a right.
This emphasis on the ability of the current majority to amend the Constitution to place new rights in it is why the originalist, for instance, would reject the idea that the Constitution enforces a right to an abortion.  The originalist notes that there is no express provision in the Constitution granting a “right to privacy”, much less a derivative right to an abortion, as the courts have found.  The originalist scoffs at the notion of judges finding “penumbras and emanations” in the Constitution, since, to his mind, the majority arbitrarily determines the scope and nature of rights in the first place, and the majority has chosen not to amend the Constitution to place a right to an abortion in the Constitution, which it could easily do if that was what it wanted.
Some will counter this originalist view by noting that judges, indirectly, are also the agents of majority will, since they are appointed by the President and confirmed by the Senate, both of which are ultimately elected by the people.  The originalist does not deny this.  He believes that both the legislature and judges should represent the majority will in their actions but, the originalist regards the legislature as being more likelyto represent the current views of the majority.  This is because judges are appointed for life, while Congressmen and the President are constantly subject to election, and therefore represent the current views of the people on a matter. Representatives in the legislature are “directly appointed”, and are constantly subject to “dismissal” by the people via the electoral process.  Therefore, the originalist reasons, since Congress and the President are more likely to represent the views of “the people”, judges should only override the decisions of Congress and the President when there is an express term in the Constitution forbidding the legislation.  Furthermore, those express terms in the Constitution must be interpreted in accordance with its “original public meaning” when adopted, because the judge must assume that the current political majority would amend the Constitution if they wanted that term to mean something else, or if they wanted to enshrine new rights in the Constitution:  “The most accurate spokesman for the people of each generation are the legislators that those people elect to represent them.”[45]
The originalist adopts a hierarchy with regard to Constitutional interpretation: the Constitution, as understood by the ratifiers, is supreme, because if the majority alive today didn’t agree with it, they would amend it.  The legislature is then of penultimate importance –with only the Constitution’s express terms, interpreted through their “original public meaning”, limiting its power.  Judges should be given the narrowest latitude because they are the farthest away from majority will.  Is there some other method of interpreting the Constitution’s terms that does not rely on the arbitrary whim of judges or the arbitrary whim of majorities?  Not according to Antonin Scalia.  The opinion he penned in the Heller decision makes his position clear:  “JUSTICE STEVENS abhors a system in which ‘majorities or powerful interest groups always get their way,’ post, at 56, but replaces it with a system in which unelected and life tenured judges always get their way.”[46]
For Scalia, there can be no reference to the facts of reality, and man’s choice to live, in order to determine what Constitutional provisions mean.  It is either the whim of the majority of voters or the whim of judges, because all concepts are nothing more than a subjective human decision that serves no purpose.  Human beings arbitrarily select certain characteristics to serve as the basis for a classification, and they agree to apply the same term to any concretes that happen to exhibit these “essentials”.[47]
Unfortunately, originalists do not appear to believe that the Constitution “means what it says” because most originalists probably believe that concepts have no other basis than arbitrary human convention, which they call “majority rule” or “democracy”.  In reality, concepts are the products of the human mind, but if they are to be considered “valid”, then they refer to things in reality, and serve the purpose of human survival.  Legal concepts like “freedom of speech” and “due process of law” serve specific purposes, and describe certain fundamental truths about man and his relationship to the universe, if he wants to live.  As the fundamental charter delegating each individual’s right to the retaliatory use of physical force to a central authority, a written constitution cannot be properly interpreted without a proper epistemology, which, in turn, requires an understanding of the ultimate purpose of concepts, which is the choice to live.

*********************************
[1]Dan Lacy, The Meaning of the American Revolution, Chapter 1, “The Eighteenth Century World” and Chapter 11, “The Federal Solution”. New York: Mentor Books (1964).

[2]Id.

[3] District of Columbia v. Heller, 554 U.S. 570 (2008)

[4]Randy Barnet, “News Flash: The Constitution Means What It Says.” http://www.cato.org/publications/commentary/news-flash-constitution-means-what-it-says

[5] M. Mbugua, “Justice Scalia says ’originalism’ protects American liberty.” http://www.udel.edu/PR/UDaily/2007/apr/scalia043007.html

[6] J. Senior “In Conversation: Antonin Scalia.” http://nymag.com/news/features/antonin-scalia-2013-10/

[7]Merriam-Webster, Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle ed.), Merriam-Webster, Inc. (2009).

[8]E.C. Moore, American Pragmatism: Peirce, James, and Dewey. New York: Columbia University Press (1961), quoting DeWulf, M. Catholic Encyclopedia, XI, “Nominalism, Realism and Conceptualism”(1909).

[9]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).

[10]E.C. Moore, American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).

[11]Ayn Rand,  Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).

[12]E.C. Moore,  American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).

[13]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).

[14]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 5. New York:Meridian (1990).

[15]Id.

[16]Id.

[17]Ayn Rand, The Virtue of Selfishness “The Objectivist Ethics.” New York: Signet Penguin Books (1961).

[18]Id.

[19]Id.

[20]This will be, at best, a brief sketch of my best understanding of some of the key concepts set forth in Introduction to Objectivist Epistemology, and the reader should consult that book for a better and definitive presentation of Rand’s position on the matter. See: Ayn Rand, Introduction to Objectivist Epistemology 2nd Ed. New York: Meridian (1990).

[21]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: Cognition and Measurement. New York:Meridian (1990).

[22]Id.

[23]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[24]  Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: “Cognition and Measurement”. New York:Meridian (1990).

[25]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[26]Id.

[27]Id.

[28]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[29]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[30]Ayn Rand Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[31]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1, “Cognition and Measurement”. New York:Meridian (1990).

[32]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[33]Id.

[34]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[35]It is also seems possible that someone, given their own particular observations and life-purposes might conceptualize wolves, dogs, and coyotes together as one concept initially, and then subdivide later as the need arose.  Rand discusses “borderline cases” in Chapter 7 of Introduction to Objectivist Epistemology.

[36]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).

[37]Id.

[38]Antonin Scalia and Amy Gutmann, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” in A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Kindle Ed.) Princeton University Press (1998).

[39]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed.” New York:Meridian (1990).

[40]  Id.

[41]Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts,  “Preface”. St. Paul: Thompson/West Publishing (2010).

[42]“Speech Before the American Bar Association”, Washington, D.C., July 9, 1985, Attorney General Edwin Meese, III.  In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).

[43] “Speech at the University of San Diego Law School” November 18, 1985, Judge Robert H. Bork. In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).

[44] McDonald v. Chicago, 561 US 3025 (2010), emphasis added.

[45] Section 70, “The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted”.  In: Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, St. Paul: Thompson/West Publishing (2010).

[46] McDonald v. Chicago, 561 US 3025 (2010).

[47]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed. New York: Meridian (1990).