22 July 2009

More Blackstone

I hinted at deference to the legislature in my prior Blackstone post which leads to some interesting knowledge.

First off:

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law.

Section The Second, Of The Nature Of Laws In General

So, one needs to defer to the intent of the legislators, not only the text. Also, if a law is within the spirit of the legislation, or not covered by the legislation, then it is presumed constutional.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

In other words, one cannot read into a law what one wants, which Scalia did. One cannot take popular meanings and interpretations which have no legal basis and use them as law: especially in the face of prior judicial precedent. Unfortunately, Scalia has shown that he is ignorant of the meaning and history of the Second Amendment. I use this in the proper term as ignorance can mean that one chooses not to take notice of something as in:

ignorance XIII. — (O)F. — L. ignōrantia, f. prp. of ignōrāre not to know, misunderstand, disregard, rel. to ignārus unaware; see -ANCE.
So ignorant XIV. ignore †not to know XVII; (of a grand jury) reject (a bill); refuse to take notice of XIX. — (O)F. ignorer or L. ignōrāre.

In fact, given Scalia's prejudices in this case, I am amazed that he did not recuse himself. It is obvious that his own opinions clouded his decision and removed them from the law. In fact, "RKBA" commentators were hopeful that Scalia would write the opinion given his known bias for this theory.

I was going to use this post to say that the judge needed to think of the consequences of his decision, but it is obvious that Scalia had only one intent and that was to give official sanction to a lie. It has burdened the Constitution with unwanted and unnecessary baggage even if it should be overturned by a decision which is based in reality.

Another point I wanted to make about reliance upon Blackstone was that the text he was commenting upon was this:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

I find it amusing that the mackeral snappers on the SCOTUS should hook their decision upon this text. Even more humourous is that the author of the Heller decision is a devout papist (or so he claims).

By what means does he presume that he is covered by this text?

If he is truly an "Originalist" than he must surely know the anti-Catholic sentiment in the English speaking world at the time of the adoption of the Constutition!

The "Second Amendment Scholar" came out with some mention of the Gordon Riots which have no meaning to the Second Amendment, but do show anti-Catholic sentiment in England and the United States at this time.

John Highham described anti-Catholicism as "the most luxuriant, tenacious tradition of paranoiac agitation in American history". Anti-Catholicism which was prominent in the United Kingdom was exported to the United States. Two types of anti-Catholic rhetoric existed in colonial society. The first, derived from the heritage of the Protestant Reformation and the religious wars of the sixteenth century, consisted of the "Anti-Christ" and the "Whore of Babylon" variety and dominated Anti-Catholic thought until the late seventeenth century. The second was a more secular variety which focused on the supposed intrigue of the Catholics intent on extending medieval despotism worldwide. Historian Arthur M. Schlesinger, Sr. characterized prejudice against the Catholics as "the deepest bias in the history of the American people" and conservative Peter Viereck once commented that "Catholic baiting is the anti-Semitism of the liberals."

William Blackstone shared the general Anti-Catholic prejudices of his age and millieu. As discussed in more detail in the article on Anti-Catholicism, his Commentaries summarized his attitude toward Roman Catholics as follows:

As to papists, what has been said of the Protestant dissenters would hold equally strong for a general toleration of them; provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory, and auricular confession; their worship of reliques and images; nay even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.

— Bl. Comm. IV, c.4 ss. iii.2, p. *54

I find it amusing that someone who is an Originalist should not only bastardise, modernise, and debase that which he claims fidelity, but I find it even more amusing that he should do so with such a text which is obviously as dated, if not more so, than the one he has baselessly altered.

Some of America's Founding Fathers had anti-clerical beliefs. For example, in 1788, John Jay urged the New York Legislature to require office-holders to renounce foreign authorities "in all matters ecclesiastical as well as civil." Thomas Jefferson wrote: "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government," and, "In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own."

Although, perhaps Scalia is showing his fidelity to the founders' and Blackstone's sentiments toward Catholics and being faithful to another master in deceit to the one he has taken an oath of fidelity.

Again, using Blackstone as an "Authority" is a minefield unless your intent is to destroy the Constitution.