(…and their validity in the context of our society’s modern conditions and times)

Justice Scalia’s death will no doubt re-ignite heavy pro-con debates about his originalist views about our Constitution… and their validity in the context of our society’s modern conditions and times. We believe these are worth further exploration to determine that, and what follows, is why we believe Justice Scalia may have been correct in his views.

To properly understand the subject, however, we have to consider the context of the situation the Founders were in, when they designed and developed the Constitution as a carefully crafted blueprint for the governance of their newly formed republic. Specifically, after some seven years of a Revolutionary War to achieve independence, and another five years after becoming independent, they found themselves to be a very ineffective collective of thirteen autonomous former “colonies”, still operating under the original Articles of Confederation of their Continental Congress, and which, all during those seven years of war, had shown how ineffective those Articles had been then, and in the five years beyond it how unresponsive these were now to the needs of their newly formed republic. So they had reached the point where they were asking themselves…now that we’ve gotten rid of the British… how are we going to live with each other?

That was the genesis for what came to be our Constitution, and its Preamble clearly shows that, since it summarizes their purpose for doing so in the way it broadly states its purpose for governance, sets up a clear framework for that governance, and then defines the general nuts and bolts of the means to achieve that objective. All of that is summarized in the leading phrase of the Preamble…in Order to form a more perfect Union…that is, they weren’t seeking something new they just wanted to have something better than what they had been operating under before.

The Preamble thus shows us that was their “intent” at the time, and they stated in quite straightforward language about what they had in mind, giving seven specific objectives for what they were trying to do, in language that says what it means, and means what it says… establish Justice…insure domestic Tranquility…provide for the common defense… promote the general Welfare…and secure the Blessings of Liberty There are no ambiguities open for debate about it. In our view therefore the Preamble is the key to properly understanding the provisions of the Constitution and why they were written the way they were.

Delving further into it we find that while the Founders described how the Constitution would function, it’s a very curious and interesting thing that all of its seven Articles are solely concerned with how the structure of government will be, what the powers of its respective branches are to be, and what their relations are to be between each other, and between itself and the States…but nowhere in those Articles is there any mention or reference to anything concerning individual “rights.”…none at all. This clearly shows us that the Founders were more focused on coming up with the best possible armature for governance than anything else, and this is further clearly shown by the minute details they outlined for it in the many sub-sections for each Article. Yet, once they had done all that, they realized they had overlooked how individual “rights” were to be covered within their very delicately balanced and dynamic design for governance. The leading Founder who so strongly pointed out that deficiency in this design was James Madison, and that’s how the Bill of Rights were attached as the first ten Amendments (of twelve proposed at the time), and became part of our Constitution.

Yet, the tone of that addendum, suggests that the Founders appended that Bill of Rights as an afterthought because of the casual way they also suggested the process for any further amending of the Constitution. A process which they appear to have deliberately designed so as to inhibit arbitrary or capricious motivations du jour to do so, because the process requires two thirds of both chambers of Congress to agree to an amendment, and three fourths of the States, to approve it, before it can be considered ratified and become law. This is perhaps one of the unintended but wisest provisions the Founders could have made because, despite its cumbersome process, that gave us the “flexibility” to change things to fit with changing needs and times.

So any “originalist” perspectives about the Constitution don’t seem to have much room for application here, because the Articles are pretty much cut and dried in their meanings. It’s only when we start to review the Bill of Rights, and the subsequent Amendments beyond these, that we find ourselves in contentious debates about the intent or the meanings of these. Even so, we have to consider the context of the time when each of these Amendments was made. Those in the Bill of Rights (I-X) are the ones which seem to generate the most debate, so let’s look at some of the more crucial ones:

Amend. I – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press, or of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

This is the most often invoked Amendment these days because it seems to be a somewhat catch-all one, lumping together several disparate concerns which, in our view, would have been better if treated separately.

With regards to religion, the intent seems clear enough, but when it’s a question about abridging freedom of speech, or of the press, things get rather wild. The critical meaning subject to interpretation and contention here is the word “abridging”. What did they mean by that? The Oxford dictionary gives the meaning…to shorten…something…but in the Founders time, and the way they use it in this context, their definition seems to be…to restrict… or… prohibit…free speech, or freedom of the press. Given the technology of the times, writing and speaking, or printing, being the only means of communicating ideas, opinions, or thoughts, their intent must have been to prevent Congress from blocking those means of communications.

Today, however, we have a host of new technologies making it much more complicated on how and where to draw the line in the exercise of that freedom. From an originalist perspective…the language is absolute… so we are free to say, express, write, print, or display, whatever we want, any way we want, no matter how offensive, repulsive, ridiculous, or just plain nuts, that might be. The Founders, however, were not idiots, so allowing such an unrestricted exercise of that “freedom” would certainly not “insure domestic tranquility” as stated in the Preamble of the Constitution. Unfortunately they didn’t clearly define what the acceptable limits of such “freedom” might be, so we’ve been left to work that out for ourselves.

Amend. II – “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.”

This is one of the Amendments about which we have the most contentious debates today. From any perspective, not just an originalist one, it is quite firm and categorical. The problem is most people either misconstrue or incorrectly believe that this means there are no restrictions about keeping or bearing arms, of any kind. They do so because they ignore the definition of “regulated” in this context, focusing on “infringed” instead. They also completely ignore the context of the times when this Amendment was written. Back then, there was no system of organized law enforcement, so local militias, performed a dual function…law enforcement…military security…and since there also was no significant formal funding to maintain such militias, allowing individual citizens to keep arms, to bear them in case of need, was a practical solution. In addition, back then, being able to hunt to provide supplemental food for the home was a nearly absolute necessity. These were the imperative practical considerations for that Amendment.

The key word in it, however, is the word…regulated. The Oxford dictionary meaning of that being…to control or direct by means of rules or restrictions, and…to adjust or control a thing so that it works correctly or according to one’s requirements. It’s clear from that definition that the Founders’ intent was not to have unrestricted individual access and use of weapons.

The second key word is “infringed”, the definition for that being…to break or act against a rule or agreement…to violate…to encroach…while this seems to be in contradiction to the first intention, we believe the Founders were simply trying to define the parameters they thought were best for that freedom to keep and bear of arms…nothing more.

So even from the earliest times there were rules and restrictions on how and under what circumstances individuals had the right to have arms. As weapon technology advanced, those rules and restrictions changed with it. Today, there are both Federal and State laws against having fully-automatic firearms (submachine guns, machine guns, and the like) which have no place in a civil society except in a military environment. Given the state of the art in firearms today, and the level of gun violence we have today, extending such rules and restrictions to cover such things as assault rifles, is no “infringement” of that freedom, and are thus within the intent of this Amendment.

Amends. IX – and X – We’re lumping both of these together here because they provide a blanket cover for rights never conceived of or demanded back then (abortion rights, same sex marriage, etc). Number IX simply states…”the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Number X states…”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Founders intent here seems to have been to allow for future needs and rights they could not predict. It’s a measure of their foresight about how things do change over time, so they were providing the means to the respective States and the people to adapt to such changes. From an originalist perspective, these two amendments suggest that such “rights”, in contention today, ought best be determined at local and State levels, rather than at the Federal level, unless of course an appropriate Amendment is promulgated for any of these, so as to make them the law of the land as provided for by the Constitution. Thus the real answers for resolving many of the contentions caused by changes in our societal in values today lie with that amendment process provided for by the Constitution, rather than attempting to do so only by litigation. We have made such modifications twenty five times since the founding of our republic. There’s no reason to believe we won’t have more as circumstances or times require.

Well, while we make no claim of expertise about the Constitution, we do believe our long standing practice of almost daily “browsing” of it (much as some folks do with their scriptures) has given us a better understanding of what the Founders had in mind when they wrote it. Justice Scalia’s advocacy for closer adherence to the original intent and meaning of what they wrote about it is still valid, and we should not just cast it aside because we think the Constitution is a “living” document. It isn’t, but rather, it’s a “flexible” one because the Founders were wise enough tack on the amendment process to it after they had finished producing it. Perhaps it was unintended, but it’s that provision for flexibility which has allowed it to endure for over two hundred years.