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Old 08-11-2008, 04:28 PM
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Quote:
Originally Posted by Jagger View Post
Scalia’s methodology of Constitutional interpretation is dictated by the outcome he desires. He decides what he wants a word, term, phrase or clause to mean, finds a source that defines or uses the language in a way that squares with his desired outcome and then applies whatever rule of construction takes him to that source.

For example:

When interpreting the phrase “right of the people”, in D. C. v. Heller, Scalia ignores the “normal and ordinary meaning” of the words comprising the phrase, and instead relies exclusively on the context of the phrase. That is to say, he considers nothing but the way the phrase, and the word “people” is used in other parts of the Constitution and Bill of Rights. Recall that Scalia in the preceding paragraph, said he was going to construe the Constitution’s words and phrases as they were used in their "normal and ordinary meaning" by "ordinary citizens of the founding generation." Scalia said nothing whatsoever about establishing their meaning from the context.

However, when interpreting the word “arms”, Scalia ignores the context and the "normal and ordinary use" and relies on the way the word was used in a passage from Alexander Pope’s translation of Homer’s Iliad and by Timothy Cunningham in a passage from A new and complete Law Dictionary. Again, recall that Scalia said he was going to construe the Constitution’s words and phrases according to their "normal and ordinary" use by "ordinary citizens of the founding generation." Homer and Timothy Cunningham weren’t ordinary American citizens of the founding generation.

Scalia doesn't even follow his own espoused principle of construction. He uses whatever rule of construction will produce the meaning he wants.
When considering the definition of a word like "people" within a legal document, the definition of such a word outside of said legal document is irrelevant and has always been in the entirety of the history of contract and public law; categories under which the Constitution can definitely be considered. Thus, the "common understanding" of a term is irrelevant to a term that is contextually defined within the document in question. Your premise holds no legal or logical merit.

Further, even using your argument of the common use of terms, words like "right" and "arms" are used in the Constitution of Virginia, authored by Jefferson (a contemporary and colleague of Madison), which clearly dictates the right of people not to be debarred the use of arms. There is NO ambiguity in the Constitution to those of us interested in HONEST discourse.
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