Category: Law

Law and Jurisprudence

An Analysis of Murder Rates Broken Down By Race

My purpose here is simply to look at the numbers and see if the murder rate in the US is proportional to what it should be, given the white population versus the black population. I do so without trying to theorize about the reasons why murder rates break down the way they do between the races. In a subsequent blog post, I plan on using this analysis to discuss the so-called “Black Lives Matters” movement and to attempt to determine if they are focusing time, energy, and taxpayer money into areas that will most effectively reduce the unjustified homicide rate of black people in America.

In 2013, 2,491 people in the US classified as “black” were murdered, according to the FBI. (See https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_table_6_murder_race_and_sex_of_vicitm_by_race_and_sex_of_offender_2013.xls, last accessed 9-5-2016.)

Of those 2,491 black persons murdered in 2013, the race of the offender was classified as “black” in 2,245 of instances. In other words, out of 2,491 black people murdered, 90% of the perpetrators of the crime were also black. How does this compare to the white murder victim rate? The same FBI statistics say that in 2013, there were 3,005 white murder victims, and that the race of the offender was white in 2,509 of those murders. This means that out of 3,005 white people murdered, 84% of the perpetrators of the crime were also white.

How does this compare to the proportions of population? Blacks make up roughly 13% of the US population. (See https://en.wikipedia.org/wiki/Race_and_ethnicity_in_the_United_States, last accessed 9-5-2016.) Whites make up about 73% of the US population. 5,496 people who were either black or white were murdered in 2013. (This is adding together the number of black people and white people murdered according to the FBI, see https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_table_6_murder_race_and_sex_of_vicitm_by_race_and_sex_of_offender_2013.xls, last accessed 9-5-2016.)

The total US population in 2013 was about 317 million people. Therefore, the chance that a given person chosen at random from the US population in 2013 was both “black” and “a victim of murder” is 2,491 divided by 317 million times 100 which is 0.00079% . The chance that a given person chosen at random from the US population in 2013 was both “white” and “a victim of murder” is 3,005 divided by 317 million times 100, which is 0.00095%. In other words, the chance that one was both “white” and “a murder victim” was about 1.19 times greater than the chance that one was both “black” and “a murder victim”. (because 1.19 times 0.00079 = [roughly] 0.0009401)

This 1.19 times number doesn’t show the whole picture, however, Thirteen percent of the total US population is black, which means there are about 41 million black people in the US. There are 232 million white people in the US in 2013. As already discussed, 90% of all black people murdered are murdered by other black people and 84% of all white people murdered are murdered by other white people. So, 2,245 black people murdered by other black people means that a black person’s chances of being murdered by another black person are 2,245 divided by 41 million times 100 percent is 0.0055%. 2,509 white people murdered by other white people means that a white person’s chances of being murdered by another white person are 2,509 divided by 232 million times 100 percent: 0.0011%. A black person is five times more likely to be murdered by another black person than a white person is to be murdered by another white person (0.0011% * 5 = 0.0055%)

Since 2,245 intra-racial murders were committed by blacks and 2,509 intra-racial murders were committed by whites, the total number of intra-racial murders committed by blacks and whites combined was 2,245 + 2,509 = 4,754. So, out of the total number of intra-racial murders committed by blacks and whites combined, the percentage committed by blacks was: 2,245 divided by 4,754 times 100 = 47%. Out of the total intra-racial murders committed by blacks and whites, the percentage committed by whites was 52%.

Since blacks make up only 15% of the population compared to whites (who make up 73%), this means that if the total number of intra-racial murders committed by blacks were proportional to the population, it would be 15% of 4,754 intra-racial murders committed by blacks and whites, or 713.6 intra-racial murders committed by blacks in 2013. Since it was actually 2,245 intra-racial murders committed by blacks in 2013, then the number of intra-racial murders committed by blacks was 3.15 times higher than it should have been given the proportion of the black population to the white population.(See http://www.bjs.gov/content/pub/pdf/htus8008.pdf, last accessed 9-5-2016.)

The Bureau of Justice Statistics sets forth the percentage of homicides committed by blacks and the percentage of homicides committed by whites between 1980 and 2009. These figures can be found at page 12, Table 7 of “Homicide Trends in the United States, 1980-2008”, where it said that of all homicides committed in the US, 45.3% of offenders were white and 52.5% were black. (See http://www.bjs.gov/content/pub/pdf/htus8008.pdf, last accessed 9-5-2016.)

Once again, since blacks make up only 15% of the population compared to whites, who make up 73%, this means that of all murders committed in the US, which was 5,723 in 2013, then if the homicide rate were proportional to the different racial populations, the number of murders committed by black people should have been 858.45 (0.15 * 5,723). But, the number of murders actually committed by blacks in the US in 2013 was 2,698.This means that in 2013, the proportion of murders committed by black people was 2,698 divided by 5,723 * 100 = 47%. Forty-seven percent of all murders in 2013 were committed by black people, despite the fact that they are only 15% of the population. The number of blacks committing murder in 2013 was about 3.13 times (2,698 divided by 858) higher than it should have been if the murder rate were strictly proportional by racial groups. (See https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_table_6_murder_race_and_sex_of_vicitm_by_race_and_sex_of_offender_2013.xls, last accessed 9-5-2016. The 5,723 number of murder victims in 2013 was obtained by adding together “race of victim” numbers found in the far-left “total” column: 3,005+2,491+159+68=5,723. The 2,698 number of blacks that committed murder number was obtained by adding together the “Black or African American” numbers in the “race of offender” grouping: 409+2,245+27+17=2,698.)

As I said when I started, I am not looking to analyze the causes of this or suggest what this should mean in terms of government policy. I am simply crunching the numbers in order to see what they are. I will save my analysis for another blog posting.

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.

President Refuses to Impose 21-Day Quarantine on Persons Entering the Country From Africa Because He Wants to Sacrifice The Welfare of Americans

Today, I got confirmation from an article that the reason the President and other federal officials are not imposing a 21-day quarantine on people entering the country from ebola-stricken portions of Africa is due to a morality of self-sacrifice that I reject:

“‘It’s typical of what America does best,’ Obama said of the response team. “When others are in trouble, when disease or disaster strikes, Americans help.'”http://www.nbcnews.com/storyline/ebola-virus-outbreak/gods-work-obama-says-u-s-must-support-health-workers-n235776

The President and other federal officials believe it is my job to sacrifice my life for strangers.

I pursue my own rational self-interest, and I am only interested in the welfare of others to the extent that it promotes my own life. For instance, if I had a wife or children, I would be very interested in their welfare because it enhances my own life to have them around. I would take large risks in order to ensure their safety. The same goes for my friends. But, I am not going to willingly sit by and endanger my life, and the life of my friends and family for total strangers.

I recognize that the risk of a major ebola-outbreak in an advanced semi-capitalist economy is small given our superior medical care, but I don’t engage in self-sacrifice, even when the risk is small.

If You Were a Healthcare Worker at Presbyterian in Dallas Who Is Subject to the State’s Travel Restriction, You’re Rights Are Being Violated

I have decided to offer my services as an attorney to any of the health care workers from Presbyterian for free for what I regard as an unconstitutional violation of their liberty without due process of law. If anyone knows any of them, have them call or text message me at 214-336-7440 and I will go down to the Northern District of Texas Federal court today and try to get a temporary restraining order regarding the travel ban that has been imposed on them by the state. I think this is a Section 1983 civil rights case.

http://www.usatoday.com/story/news/nation/2014/10/17/texas-ebola-health-care-workers-travel-ban/17424465/

“I need wider powers!”

In her novel Atlas Shrugged, the socialist villains get together after their numerous attempts to control and plan the economy have resulted in wider and wider disasters. Rather than undoing what they have already done to cause the problem, the lead government bureaucrat, Wesley Mouch declares: “I need wider powers!” A similar spectacle could be seen today with respect to the Ebola outbreak that occurred in my home city of Dallas. It has been revealed that the second nurse from Presbyterian hospital to be infected by “patient zero” reported to the CDC that she had a slight fever. She was planning to fly by plane to Ohio, but she requested guidance from CDC on the matter. Their response was typical of a government bureaucracy:

“Vinson told the CDC her temperature was 99.5 Fahrenheit (37.5 Celsius). Since that was below the CDC’s temperature threshold of 100.4F (38C) ‘she was not told not to fly,’ the source said. The news was first reported by CNN.” http://www.reuters.com/article/2014/10/16/us-health-ebola-usa-idUSKCN0I40UE20141016

Note the double negative here. This is the kind of “weasel language” you would expect from a government bureaucrat trying to cover himself. Instead of saying: “We told her to fly,” which is what really happened, the CDC says: “she was not told not to fly,” in the hopes that they can deflect blame.

As a result this woman flew form Ohio to Dallas, while she was symptomatic. This is significant because ebola only becomes contagious when a person has begun to show symptoms, such as a fever.  The CDC, whose alleged purpose is to protect the public from the spread of infectious disease told someone they knew to be symptomatic to board an airplane and fly, thereby potentially spreading the virus throughout the country.

The CDC’s response to the fact that they failed to advise this woman not to fly, which, from every indication, she would have voluntarily agreed to if they had simply asked her?: 

“The Centers for Disease Control and Prevention is considering adding the names of health care workers being monitored for the Ebola virus to the government’s no-fly list…” http://www.foxnews.com/politics/2014/10/16/cdc-considers-adding-names-people-monitored-for-ebola-to-no-fly-list/

In other words, the very people that our nations hospitals are depending on to treat patients -doctors and nurses- are going to be placed on the same list as suspected terrorists and told that their right to travel is being restricted without due process of law. The issue of whether and when someone can be restricted in their liberty by virtue of having a dangerous communicable disease is a complicated issue. There may be times when it is justified -but it should never, under any circumstances, occur without that individual being given notice and a hearing in front of a judge. Yet, these people are apparently going to be arbitrarily placed on a no-fly list with no hearing at all.

The CDC’s response to their failure is to whine like the villain Wesley Mouch: “I need wider powers!”

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. Now the CDC response is to claim they need arbitrary power to put people on a no-fly list without due process of law. The real solution is to recognize that “government funded science” is a contradiction in terms, and end the CDC and income taxes so that private individuals can voluntarily work towards real solutions to the world’s problems.

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).

Frontline’s “United States of Secrets”

Last night I watched this 2-part special on Frontline. Overall, I thought it was a decent presentation on an important topic. I somewhat question one of the premises of part 2, “Privacy Lost”. In that episode, they basically said that since Google uses an automatic system to scan your emails for keywords and then present advertisements to you automatically -without any person ever actually knowing the content of your email- then that opened the door for the government to scan your email without a warrant, because courts wouldn’t be able to make the distinction.

But, to me, this is like saying: because I allow a maintenance man into my apartment to repair something, then I have somehow given permission to the police to enter my apartment at any time and search it from top to to bottom. You should be able to agree by contract to allow someone to have access to something that is private without it meaning that you have granted permission to everyone else in the world to view it. I think you can also grant someone access to something with the understanding that they are to keep knowledge of that thing confidential, absent a warrant or subpoena issued by a court.

http://www.pbs.org/wgbh/pages/frontline/united-states-of-secrets/

We Don’t Need Gun Control We Need a Philosophy of Individual Rights

France has extensive gun control laws. The civilian ownership of most semi-automatic firearms, handguns, and automatic firearms is prohibited. http://www.gunpolicy.org/firearms/region/france  Despite this, a Muslim Jihadist was able to kill three people and wound one with an AK-47. http://www.bloomberg.com/news/2014-06-01/jewish-museum-murder-suspect-arrested-in-france-hollande-says.html
Mass shootings like this have nothing to do with the ease or difficulty of obtaining such weapons, as this killing in Belgium demonstrates, and everything to do with the existence of societies filled with people who no longer take personal responsibility for their own wellbeing and for the wellbeing of their loved ones. It is a result of a Western Culture of Individualism that is so far in decline that people join various cults and groups that advocate the subordination of individual lives and happiness to a god or a tribal group. It is a result of people who no longer use their own minds to search for the truth, but instead depend on some collective or religious authority to tell them what is right and wrong. It is a result of schools, journalists, and politicians that encourage envy and hatred of others by claiming that there is something wrong with those who do choose to pursue their individual, secular happiness in a free market system.

If too many people reject individualism and their own secular happiness in favor of some sort of collective ethnic group or afterlife, then they will violently turn on those that are not of their “tribe” or don’t worship their god, and we will see a relapse to the sort of perpetual warfare that hasn’t been seen in Europe since the Middle Ages. If too many people listen to left-leaning politicians and their politics of envy, then more mentally unstable people will find a rationalization for indulging their own feelings of envy and hatred of others with violence -such as the 2007 Virginia Tech mass-murderer who espoused his desire to kill “rich kids” in his suicide note.

The Western World doesn’t need gun control, it needs to rediscover a philosophy that advocates the pursuit of individual happiness in this life, and reason as the cardinal means of achieving that happiness. It needs governments that respect and protect individual rights to life, liberty, and the pursuit of happiness.