Constitutional Originialism
For anyone who may be interested, here’s a conversation I’m having with some old college friends on constitutional originalism, a concept regarding the interpretation of the U.S. Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted.”
Craig: To me, this is silly at three different levels. First and most obviously, since all these people have been dead for 200 years, we have no way to access what their intent was at the time. Secondly, I don’t think an intelligent person, e.g., Amy Comey Barrett and the late Antonin Scalia sincerely believe that our society shouldn’t interpret the Constitution in terms of the times in which we live. In particular, no one could have anticipated the technological advancements of the intervening 230 years.
Lastly at left here is what Scalia actually said in defense of originalism, which of course is totally incorrect; the meaning of words change constantly, and especially over a period of centuries.
My own belief is that this idea is so inane that I think these people are simply insincere, and are using it to prevent our society from making progress in the direction of fairness and civility.
Rand: I disagree that originalism is silly, given we can pass laws that would be constitutional. But we are more and more inept at passing laws. And we can also amend the Constitution. I’m not comfortable with “interpretation.” Whose interpretation? Trump’s? Biden’s? McConnell’s? Pelosi’s?
Andrew: I’m with Rand. The Constitution is difficult to change by design, but it can and has been done. That said, there are principles that transcend time. For instance, the 4th amendment’s right to privacy and the requirement of warrants for searches works as well for cell phones and computers as it does for paper files.
Craig: Yes, that’s true about the 4th Amendment. I think we’re all very glad that the decision came down the way it did three or four years ago.
I grant all this is problematic, and for the reasons Rand mentioned. But here’s an example of something that’s far more problematic: originalists’ interpretation of the 2nd Amendment. In 1789, “arms” meant “all arms,” i.e., muskets. It didn’t contemplate RPGs and hydrogen bombs. What do you think one of the framers would say if I were able to resurrect him and tell him that 120 million Americans legally possess 393 million guns, some of which are designed to kill hundreds of people in just a few seconds–and that there are no safeguards to keep these out of the hands of stark raving lunatics?
Rand: A framer might have said the system they created allowed for the passing of laws that would define and safely regulate arms. The fact that we have not done so does not mean it is a Constitutional problem.
Andrew: Craig, there are laws to keep weapons out of the hands of “stark raving lunatics,” but we have to know who they are first. And there is no limitation on the states or national governments to limit the weapons that law-abiding adults can possess to those that are for self-defense. Fully automatic weapons, for instance, have been outlawed since forever. I expect hydrogen bombs are too. The laws in Chicago and DC that were struck down a decade ago by the Supreme Court made it virtually impossible for a law-abiding adult to have a weapon for self-defense. The Court went out of its way to state that reasonable regulations were OK. As Rand notes above, this is a legislative issue, not a constitutional one.
Craig: I don’t understand the difference between a “legislative” and a “constitutional” issue. I’m one of the 91% of Americans who wants a law that requires background checks for all prospective gun owners (so as to identify the “stark raving lunatics”), but this cannot and will not happen due to our (originalist) interpretation of the 2nd Amendment.
