Jim Shaul's Reflections and Refractions

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Originalism is in its simplest terms, reading a text, any text, looking for and sticking to the meaning that the writer had in her/his head when it was originally written. Pretty simple idea, actually. When applied to a way of approaching the Constitution, it has been defined as, “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.” (Miriam Webster) No real difference from Non-constitutional originalism, really.

It seems that reading and understanding some older documents is fairly straight forward and simple. Let’s look at the “Emoluments Clause” in Article I Section 9 Clause 8 of the US Constitution.

“And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. “ What did they mean? Firstly, that is the exact question we should first ask – what did the writers mean when they wrote it? Mostly it is understandable in plain English. What are “emoluments”? While this word is not commonly used, it is a word used today to mean, “profit, salary, or fees from office or employment; compensation for services” according to Dictionary.com. If one chooses, you can do a deep dive study into the history of the word and its usage in other documents at or before Oct. 1780 to see if had alternate meaning back there.

So, what we are asking is, “what specifically were the writers of the constitution guarding against?” for a good discussion on this go to: https://www.law.cornell.edu/wex/emoluments_clause. The Supreme Court has never had a case before it on the question of the meaning of the emoluments clause, so we are left to speculate and defend our position. It seems safe to say that the framers of the constitution did not want elected or appointed Senators or Representatives to make money for foreign Kings or Princes, or receive money from foreign states while holding office – without consent of of Congress. But even if it seems safe to say that, the way our system works is that truly only the Supreme Court gets to say what it means. We can speculate, but only they can legally declare it so.

What if the minds of U.S. citizens changed over time and they decided that in fact it was fine that this happened. How would they make such a thing possible? Well, they could try and take a case to the Supreme Court and convince them that the original meaning of the constitution was such that it did not prevent officials from getting money this way. That would be a tough sell, but they could try. If the court rejected the argument or the case, there are two other options. They could amending the constitution in either of the two ways (it has been tried before) that are set forth in the constitution. For a good read on how that is done, see the following: https://www.thoughtco.com/how-to-amend-the-constitution-3368310.

For the rest of us, we write stuff and we read stuff and expect that others will take up the meaning that we laid down and vice versa. We should respect each other enough to attribute to them the skill of saying what they mean and saying it in a way that is understandable.

Stay tuned for Part II

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If you would like to communicate further about this or any other issues, please email me at jimshaul@gmail.com and we can chat. We can also chat on Messenger once I know who you are.

If you would like to read more of my thoughts, please visit my blog: https://jimshaul.org and follow me there.

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For His Glory,

Jim

“You gotta fight for your right to party!” This famous declaration of independence by a cadre of seasoned philosophers (the Beastie Boys) brings up the most important questions about rights – where do they come from, and how do we fight for them?

Webster says that a right is, “something to which one has a just claim.” In my ethics class, I defined rights as,”privileges granted to a person or group of persons by someone who has the power and/or authority (thus making it just) to grant the right and who intends to defend that right given to the grantee. Typically, rights are granted in writing such that the grantee can find and make a claim to the right as having been given on a certain day and recorded in a certain document. “

The right to an abortion in our country was granted by the legislatures of New York, Alaska, and Washington between 1970 and 1973. These legislatures (likely primarily old white men) Before 1970, there was no right to abortion in the United States. This right does not just float out there in the ether for us to claim as we will. It must be granted and recorded.

In 1973, seven Supreme Court justices (all old old white men) determined that the constitution implies a right to an abortion, thus forming the legal and written basis for a national right to an abortion. To make this as clear as possible – the national right to an abortion was created in in 1973 with the Roe decision. For three years previous to that, three states had rights to abortion.

Fast forward to 50 years and 60 million abortions later.

Now, with Dobbs, six Supreme Court justices (four old white men, one old black man, and one woman) determined that Roe was decided incorrectly and struck it down – effectively making it the law of the land that there is no US national right to an abortion.

So, we are back to where we were in the days before Roe. Individual state legislatures will hash out granting abortion rights or not as they see fit. This is where the fight for the right will occur. They will fight over whether or not to create new state abortion rights, and this is what the Dobbs court determined: abortion should be in the hands of the legislatures of the various states and ultimately in the hands of the citizens therein.

For a related post see “Write and Wrong” posted June 2022.

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If you would like to communicate further about this or any other issues, please email me at jimshaul@gmail.com and we can chat. We can also chat on Messenger once I know who you are.

If you would like to read more of my thoughts, please visit my blog: https://jimshaul.org and follow me there.

If you appreciate my posts, please consider Liking them and Sharing them below if you think they could be a blessing to others.

For His Glory,

Jim

Back when I taught Critical Reasoning and also Ethics on the college level, students had an option to write a position paper on topics, including abortion. After receiving my Masters degree in 1991, I began teaching – which put it 18 years after Roe v Wade was decided. I often had students argue for their position that abortion should be allowed based on the fact of Roe being the law of the land. I would sometimes ask in my comments if they would have argued differently before 1973 (before Roe) or if they would argue differently if Roe were overturned. Invariably they said no. The law of the land was NOT a primary reason for their support of abortion. Logically speaking, it was even a secondary reason. It was just a way to help justify their position. They were going to support abortion no matter what the Supreme Court or the state laws affirmed. Their position was rooted in their personal values.

My guess is we are going to see the same thing now that the Dobbs decision has effectively overturned Roe. If you are discussing (which I predict will typically be arguing) the merits of Dobbs and the rationale for abortion, ask them if they support a right to abortion that exists even though the Supreme Court has explicitly stated that there is none in the constitution – the “Court’s conclusion [is] that the Constitution does not confer such a right.” If they say yes, then ask if Roe, then, made any difference to their argument. The three most important questions to ask are, if they hold that a right to abortion still exists in this country, 1)where does that right exist, 2)when was it given, and 3)where was it recorded.

The reasonable answer should be that the right to have an abortion will or will not be found in individual state laws – which is, in my view, where it should have existed (if at all) in the states (as decided in Dobbs). The individual and separate states again have the ability to create “rights” to abortion. Local morals, values, and politics will determine the outcome there.

Dobbs says the following: But the Court cannot allow its decisions to be affected by such extraneous [political] concerns. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy [the Supreme Court decision that upheld racial segregation] would still be the law.”

All rights do not, in fact, originate with the Creator, as some assert. The Declaration of Independence only states that some rights came from that source. It didn’t limit it there. Governments can create rights. In the United States, as of March 24, 2022, state governments have the power to do that in the matter of abortions … and no one else.

Dobbs does not end abortion or prohibit it. It simply puts the decision in the states’ hands. If you want your state to reflect your views on abortion, contact the state legislator representing your district and give her or him your views. You, as a citizen, have the power.

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If you would like to communicate further about this or any other issues, please email me at jimshaul@gmail.com and we can chat. We can also chat on Messenger once I know who you are.

If you would like to read more of my thoughts, please visit my blog: https://jimshaul.org and follow me there.

If you appreciate my posts, please consider Liking them and Sharing them below if you think they could be a blessing to others.

For His Glory,

Jim