Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: freedomjusticeruleoflaw
[freedomjusticeruleoflaw #177] What matters is what the PERSON WHO AUTHORED the 14th Amendment meant.

This is simply FALSE. Not only is the intent of the author not controling, it is not usable. It is not even a proper subject for judicial comment. The words adopted are the law, and not some purported intent, real or imagined, of the individual author or legislator.

You will find it frequently said in judicial opinions of my court and others that the judge's objective in interpreting a stat­ute is to give effect to "the intent of the legislature." This princi­ple, in one form or another, goes back at least as far as Blackstone. Unfortunately, it does not square with some of the (few) generally accepted concrete rules of statutory construction. One is the rule that when the text of a statute is clear, that is the end of the matter. Why should that be so, if what the legislature in­tended, rather than what it said, is the object of our inquiry? In selecting the words of the statute, the legislature might have misspoken. Why not permit that to be demonstrated from the floor debates? Or indeed, why not accept, as proper material for the court to consider, later explanations by the legislators — a sworn affidavit signed by the majority of each house, for exam­ple, as to what they really meant?

Source: Antonin Scalia, A Matter of Interpretation, p. 16

The evidence suggests that, despite frequent statements to the contrary, we do not really look for subjective legislative intent.

Source: Antonin Scalia, A Matter of Interpretation, p. 17

A Matter of Interpretation, Federal Courts and the Law, by Antonin Scalia, 1997. This book contains an essay by Antonin Scalia and responses to that essay by professors Ronald Dworkin, Mary Ann Glendon, Laurence Tribe, and Gordon Wood. There is a final response by Antonin Scalia.

Laurence Tribe, pp. 65-6

Let me begin with my principal area of agreement with Justice Scalia. Like him, I believe that when we ask what a legal text means — what it requires of us, what it permits us to do, and what it forbids — we ought not to be inquiring (except perhaps very peripherally) into the ideas, intentions, or expectations subjectively held by whatever particular persons were, as a historical matter, involved in drafting, promulgating, or ratifying the text in question.

At page 30, Scalia quoted from Aldridge v. Williams, 44 U.S. 9, 24 (1845):

In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.

United States v. Union Pacific Railroad Company, 91 U.S. 72 (1875)

Syllabus

4. In construing an act of Congress, the court may recur to the history of the times when it was passed in order to ascertain the reason for, as well as the meaning of, particular provisions in it, but the views of individual members in debate, or the motives which induced them to vote for or against its passage, cannot be considered.

Opinion of the Court at 79:

In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it.

Downes v. Bidwell, 182 U.S. 244, 254 (1901)

It is unnecessary to enter into the details of this debate. The arguments of individual legislators are no proper subject for judicial comment. They are so often influenced by personal or political considerations, or by the assumed necessities of the situation, that they can hardly be considered even as the deliberate views of the persons who make them, much less as dictating the construction to be put upon the Constitution by the courts. United States v. Union Pac. Railroad. 91 U.S. 72, 79.

For what it is worth, which is legally nothing, Senator Jacob M. Howard of Michigan, the author of the citizenship clause of the 14th Amendment, stated:

"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Congressional Globe, May 30, 1866, page 2890, on introduction of the citizenship clause of the 14th Amendment.

Aliens who belong to the families of ambassadors or fireign ministers addredited to the Government of the United States are born with the foreign nation they represent. All, others are born United States citizens.

179 posted on 08/24/2020 12:41:37 PM PDT by woodpusher
[ Post Reply | Private Reply | To 177 | View Replies ]


To: woodpusher

You are not a lawyer... obviously.


181 posted on 08/24/2020 4:44:34 PM PDT by freedomjusticeruleoflaw (Strange that a man with his wealth would have to resort to prostitution.)
[ Post Reply | Private Reply | To 179 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson