Is there any best way to read/interpret the Constitution of the United States? Also is the Constitution a dead, living or, as the late original originalist, Antonin Scalia, would say, “enduring” document? According to Scalia, the Constitution today means not what contemporaries including SCOTUS might think it means, but what it meant at the time of its creation and adoption, this being, again according to Scalia, the “public meaning” of the document, and that which today it is beholden on the Justices to recover.
But most things that today most concern us are not mentioned in the Constitution. Even the most thorough original is not going to find evidence of what the framers might have thought, regarding asylum seekers, gun owners, and to mention just two of the thorniest subjects, abortion and same sex marriage. What did the public of 1789 think about such things? Probably little or nothing of course, and at the time they weren’t obliged to. Now they, which today is we, we think a lot about these things and our opinions are all over the map.
So where do we look for help in untying the knottiest questions that confront us? At the moment more to the nine Supreme Court justices than to the 535 members of the Congress. And the result is that the Justices are deciding questions that are not even mentioned in the Constitution (should they be? Scalia would say no). How then can one even be an original given this situation, and during the present time the originals are rapidly becoming a court majority!
Our original originalist would probably say that if it’s not mentioned, or not clearly mentioned in the Constitution it should then be up to the Congress to act and by its action to resolve the question if not fully enlighten us. But that of course hasn’t always happened (and it’s hardly happening at all right now) and many of the decisions of the court exist because the United States Congress has not stepped up to the plate, this being true of such hot button issues as immigration, gerrymandering and redistricting, abortion, same sex marriage, all of great importance at the present time, and including whatever limits ought to be placed on the executive.
Now for example, how might the originalist read the Second Amendment to the Constitution, that which says: A well regulated Militia, being necessary to the security of a free State the right of the people to keep and bear Arms, shall not be infringed. What this meant at the time, the “public meaning” of the phrase, doesn’t seem all that difficult for us to understand. Doesn’t it clearly mean that people will be allowed to “keep and bear arms,” but in a militia, or military force that is raised from the civil population to supplement a regular army in an emergency (not just anywhere, not in a local public school, not on the campus of the University of Texas) —the militia being a force that will be used to defend the security of the State.
In this original understanding individuals with the right to bear arms will be members of a militia. Take away the militias and don’t you then take away the right to bear Arms? Where was the militia at Sandy Hook, at Columbine, and at Stoneman Douglas high schools? The Constitution says nothing at all about an individual right to purchase and own arms in his or her own defense (arms which by the way are not described in the Constitution, and in any case bore no resemblance to arms today other than being able to shoot someone dead). So hasn’t the original originalist misinterpreted the “enduring and public meaning” of the Second Amendment to the Constitution? And what’s to prevent the growing number of originals on the court to go on entirely misinterpreting the meanings of the founders, the “public meaning” of their words at the time?
I’m at a complete loss to understand why first Justice Scalia, and after him Justice Gorsuch, and perhaps in the near future Justice Kavanaugh, why the three of them, and many others of their persuasion, are so attached to what might have been the public meaning at the time of the words and phrases of our Constitution. The meaning of everything, including the words in the Constitution, changes in time. And what changes the most just has to be the meaning of the words, of any words from 200 years ago, as we grow in understanding and make changes accordingly. As for the meaning of “a right to bear arms” we ought to be trying to determine what meaning if any it has for us today. For example, are our lives more secure with this “right” than without it? Not an unreasonable question, and to the answer of which the “enduring” public meaning of 1789 has little if anything to. contribute….