Readers React: What James Madison might have said about Scalia’s originalism

To the editor: David R. Rivkin Jr. and Lee A. Casey note that the late U.S. Supreme Court Justice Antonin Scalia loved to cite Alexander Hamilton’s Federalist Paper on limiting the judiciary’s power to the exercise of “merely judgment.” (“Justice Scalia kept constitutional originalism in the conversation — no small legacy,” Opinion, Feb. 15)

Alas, Scalia never would have cited James Madison’s Federalist No. 37, where he argued that no language “is so correct as not to include many equivocally denoted different ideas” and that “all new laws, though penned with the greatest technical skill … must be considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”

Madison’s understanding of language is the best challenge to Scalia’s “gift” of originalism. It invalidates Scalia’s claim that the language of the Constitution has a “fixed” meaning that a judge can discern objectively.

The gift of “originalism” that Scalia offered was a bogus gift in my opinion (and certainly for Madison too).

Thomas Gustafson, Los Angeles

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To the editor: Despite claiming to be an originalist, Scalia had to invoke his own “penumbra” to conclude that the 2nd Amendment was really about a personal right to bear arms and not focused instead on arms that would be needed by a “well regulated militia.”

In his 2008 opinion in District of Columbia vs. Heller, Scalia divined for the first time in our jurisprudence that the 2nd Amendment, despite what it actually says, was only about our personal right as Americans to own weapons. To conclude that, he had to ignore the plain text of the first clause about a “well regulated militia.”

To accomplish this feat, he found (but did not call it so) an originalist’s “penumbra” argument, claiming that the “original” intent of the framers was to guarantee the right of the people to own weapons.

But wait — what about that “well-regulated militia” clause? So much for the plain text.

Richard Brock, Indio

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To the editor: “Originalism” is just a made-up term for Scalia’s brand of judicial activism. Anyone who argues that a corporation should effectively be a person before the law doesn’t have any concept of biology and has a real loopy idea of what the framers of the Constitution intended.

Using the term “originalism” as an excuse is like saying, “God made me do it.”

Leigh Pomeroy, Mankato, Minn.

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