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.
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[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).