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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  February 15, 2016
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Topic category:  Constitution/Constitutional Crises

Ted Cruz Should Fully Respect the Late Justice Scalia's Originalism, Not Pick and Choose

Alas, the Constitution can't be amended fast enough to qualify Cruz for the 2016 election, so he's ignoring the meaning of "natural born" as "generally used" when the Constitution was drafted and adopted.

It may be impossible for another Justice Antonin Scalia to replace the original one on the United States Supreme Court, but it is essential that he be replaced by an originalist.

On November 30, 2010, I posted "God bless Justice Scalia and other originalists" (www.renewamerica.com/columns/gaynor/101130).

To repeat:

"Justice Antonin Scalia is an originalist, as justices and judges are supposed to be, but he has been telling it like it really is: 'Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power, because they don't just apply the rules that have been written, they create new rules.'"

I reiterated an important point made by Justice Scalia and reported by Steven Ertelt, in "Justice Scalia: Founders Never Imagined Abortion 'Rights'" (www.lifenews.com/2010/11/23/nat-6875/):

"In a speech at the University of Richmond in Virginia on [November 19, 2010], Supreme Court Justice Antonin Scalia confirmed again his view that the Constitution contains no so-called abortion rights.

"He told the audience during his speech, that is only now drawing attention, that the founders of the nation never envisioned a right to an abortion when drafting the Constitution that is supposed to guide the federal courts.

"Scalia criticized, according to an AP report, those who misinterpret the 14th Amendment's due process clause to include abortion.

"'But some of the liberties the Supreme Court has found to be protected by that word liberty nobody thought constituted a liberty when the 14th Amendment was adopted,' Scalia said. 'Abortion? It was criminal in all the states.'"

Then I explained the problem posed by those who reject originalism:

"Liberal judicial activists circumvent the Constitution's prescribed amendment procedure under the guise of judicial interpretation.

"These activists describe the Constitution as a 'living document,' thereby obfuscating the reality that they are usurping power never given to them.

"In his Richmond speech Justice Scalia pulled back the curtain on the judicial activism power grab."

Again I quoted Ertelt:

"Scalia repeated his view that the Constitution should be taken literally, as written, rather than interpreting it to include rights not intended to be protected under law.

"'The Constitution says what it says and it doesn't say anything more. For flexibility, all you need is a legislature and a ballot box," he added, in terms of how abortion advocates should attempt to change the constitution if they want to have legal abortions.

"By allowing the Supreme Court to create rights not enumerated by the Constitution 'you're allowing five out of nine hotshot lawyers to run the country.'"

I continued:

"In sharp contrast to the arrogant, elitist activists, Scalia humbly acknowledged that the words of the Constitution should be interpreted as they were meant at the time they were written and gave this Looney Tunes example to show how the meaning of words has changed over time: In the Old Testament, the word 'nimrod' was used to describe a great hunter. But when Bugs Bunny used the word to describe Elmer Fudd, the meaning changed to mean an idiot.

"Justices are not supposed to be Humpty Dumptys, insisting as Humpty Dumpty did to Alice, in a scornful tone: 'When I use a word, it means just what I choose it to mean neither more nor less.'

"The Founding Fathers did not conceive of the Supreme Court of the United States as a super legislature, and the Constitution did not make it one.

"Chief Justice John Marshall explained the duty of the Supreme Court.

"In Gibbons v. Ogden, (1824), Marshall endorsed natural construction of the Constitution, since 'the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said.'

"In Ogden v. Saunders (1827), Marshall noted that 'the intention of the instrument must prevail' and 'be collected from its words,' 'its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended,' and 'its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers....'Justices and judges are to be servants of the law, not manipulators of the law.

"Scalia in his address entitled 'Do Words Matter?': 'Unless the words have meaning and unless judges give them their fair meaning, democracy doesn't work.'"

Sadly, Ted Cruz is running for President, even though he's a natural born Canadian and not a natural born American citizen, and running as a champion of originalism. Sadly, Ted Cruz is running for President even though he's a natural born Canadian and not a natural born American citizen, and running as a champion of originalism.

But:

1. "natural born" are words with "meaning";

2. judges are supposed to "give them their fair meaning";

3. the "fair meaning" of "natural born" is to be "understood in that sense in which they are generally used by those for whom the [Constitution] was intended"; and

4."that sense" is "born in the USA."

Scalia was right that the Fourteenthth Amendment's due process clause has been distorted from "a guarantee of process to a guarantee of liberty" and "some of the liberties the Supreme Court has found to be protected by that word liberty nobody thought constituted a liberty when the 14th Amendment was adopted."

Scalia: "Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states."

The Supreme Court created constitutional rights to abortion and "same sex marriage."

Cruz knows that.

Perhaps the Constitution should be amended to delete the "natural born" requirement for Presidents, but that should be by constitutional amendment, not judicial fiat.

Cruz knows that too.

Alas, the Constitution can't be amended fast enough to qualify Cruz for the 2016 election, so he's ignoring the meaning of "natural born" as "generally used" when the Constitution was drafted and adopted.

Perhaps the Constitution should be amended to delete the "natural born" requirement for Presidents. If so, that should be done by constitutional amendment in accordance with the Constitution's amendment clause, not judicial fiat.

Cruz knows that too.

Alas, the Constitution can't be amended fast enough to qualify Cruz for the 2016 election, so he's ignoring the meaning of "natural born" as "generally used" when the Constitution was drafted and adopted and claiming to be as eligible as Donald Trump, even though Trump was born in the USA and Cruz wasn't.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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