I'm all for kicking off the new Congress with a reading of the Constitution. I also think it's a great idea to include a statement of Constitutional authority in every piece of federal legislation. Our elected representatives should, of course, make a good faith effort to pass only legislation that honors our founding document. What bothers me is the barely-disguised claim of the House Republican leadership to a special and infallible knowledge of the Constitution's meaning. For Speaker Boehner and his new Tea Party friends, to simply read the words of the Constitution is to transport us into the minds of the Framers (and into the collective consciousness of the founding generation) where the unconstitutionality of vast swaths of the U.S. Code immediately becomes clear.
Few would contend that the original meaning of the text is irrelevant to constitutional interpretation. In opposing Scalia-style originalism, Justice Stephen Breyer, in his new book, Making our Democracy Work, and in a fascinating interview with Fox News, explains that even if certain enduring values can be located in the original meaning of the constitutional text, originalism simply does not supply answers to questions about applying those values to specific modern circumstances. A second, and even more fundamental, problem is that originalism, in practice, has been manipulated by the right to mask its own plainly ideological approach to determining the values enforced by the Constitution.
The best contemporary example is the Supreme Court's reading of the Second Amendment in its landmark 2008 ruling in District of Columbia v. Heller striking down the District's handgun ban. Here was a case where the central task was identifying the value sought to be protected by the Second Amendment. Was it the defense of the individual against criminal attack in the home? Or was it society's interest in a well-armed state militia system, protected against destruction by federal authorities?
This was necessarily a debate about original meaning. It was, therefore, destined to be a debate about history. What is striking about Heller is that Justice Scalia's majority view that the Second Amendment is about the value of individual self-defense has received virtually no support from professional historians. Characteristically understating the matter, Justice Breyer told Fox News that "more of the historians were with us," referring to the four Heller dissenters. In fact, of the 16 academic historians who joined "friend of the court" briefs in Heller, 15 argued that the Second Amendment was entirely about the protection of state militias, not individual self-defense. Unlike Justice Scalia, the historians thought it important that the Second Amendment is the only provision in the Bill of Rights in which the core value to be protected actually appears in the text -- "A well regulated Militia, being necessary to the security of a free State... "
The historians' attack on the self-defense view has continued after Heller, with 24 professional historians joining briefs criticizing the self-defense view in last year's McDonald v. City of Chicago case, in which the same 5-4 majority extended the Second Amendment to apply to the states through the Fourteenth Amendment. The remarkable scholarly consensus that the Court had gotten the history wrong in Heller led Justice Breyer to pose this question in his dissent in McDonald: "If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views?"
Justice Breyer's obviously tongue-in-cheek question supplies its own answer. Justice Scalia's Heller originalism is not really about history. It's about ideology. Indeed, when it was necessary to reach his desired result, Justice Scalia abandoned originalism in the Heller opinion itself, when he found that handguns are constitutionally protected because they are in common use now, not in 1791. As historian Saul Cornell has written, "Justice Scalia's brand of plain-meaning originalism is little more than a smoke screen for his own political agenda."
As I have written elsewhere, apart from its manipulation of history, there is much reassuring language in Heller (reaffirmed in McDonald) that may serve to protect strong gun regulations from constitutional attack, an optimistic prognosis so far borne out by lower court decisions since Heller. I suspect that, over time, Heller will prove far more destructive to originalism than it will be to gun laws.
In the meantime, when the Second Amendment is read to the House of Representatives, the language about the "well regulated Militia" will still be there. The originalists of the right are entitled to their own opinions, but not to their own text, and not to their own history.
For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009).
SCOTUS considers your argument silly ("bordering on the frivolous", as I recall).
"Conveniently the information from our "infallible" Founding Fathers designating blacks as being equal to 3/5th of a white was not read"
"Sure does make it a lot simpler to go along with a 1790 interpretation as long as the references to problems such as these do not make the staged recitation and actually provoke the populace to ponder how much the Constitution has had to be altered over the centuries" Enlightened45
What are you complaining about now? You claim Republicans have a "professed reverence and adherence to that venerable document". What gives you an omniscient understanding of the COTUS? Certainly not the many times you have advocated ignoring completely sections of the Bill of Rights. Seems as if you are just as guilty of ignoring those parts you seem to think are no longer valid or obsolete.
The question you ask about the 3/5th was settled by the 13th Amendment. That created a change in the Constitution that negated the 3/5 provision. You seem more disgusted at that fact than is reasonable. Yes, the COTUS changes. When amendments are made, it can change the wording in the actual document that is printed and reprinted continuously. They read the COTUS as it exists today. Not the way you seem to have wanted them too. That's not originalism. Don't like it, advocate for amendments. Until then, orignialism for existing provisions IS what governs interpretation.
The Constitution exists in its entirety, and should have been presented, warts and all, for the citizenry to understand the history of our country,... prideful and shameful, for both have occurred.
Actually it was Section 2 of the 14th Amendment that accomplished that result.
Old Jarhead wrote: "Yes, the COTUS changes. When amendments are made, it can change the wording in the actual document that is printed and reprinted continuously."
Yes, in fact many Constitutional Law textbooks provide a version of the Constitution with some provisions shown in strike out format and a notation to the amendment which has made the original text obsolete. Madison originally thought this would be the proper mode of Amendment as when he introduced the Bill of Rights he provided that the provisions be inserted in the specific portions of the Constitution to which they pertain, a process known as interlineation. Such a process would, of course, require renumbering the provisions of the Constitution each time an Amendment was added. The first congress felt it far simplier to merely append the Amendments by addendum, rather than insert them via interlineation.
And so will "of the people", which Henigan fails to pronounce when reciting it.
Liberal and conservative majorities have moved on.
As for most gun control proponents are willing to discuss "commonsense" gun control, absolutely. Yet the only "commonsense" I have seen you propose up to now has been either a complete ban, or such tight restrictions that no sane person would be willing to legally own firearms. How is that "commonsense"?
i am curious how does your interpretation apply to native americans..who hunted and fought wars and practiced self defense before we were a country...and continued to do so after the u.s. was established...
when did they give up those rights...
do native americans such as myself have more rights than others and if so isn't that discrimination.....
Hmmmmm....
1183 (1782)
mere having a gun was no offense . . . for a man may
keep a gun for the defense of his house and family . . .”27;
The U.S. no longer has the sort of militia system that the Constitution describes, and the modern gun industry has been completely irresponsible in marketing its wares and in promoting a gun culture that has no reasonable justification. The gun industry markets guns as though they were some mark of coolness and machismo, and the industry cares only about profits. It cares nothing at all about safety.
It is time to repeal the 2nd Amendment so that it cannot be used to prevent much needed reforms.
The Heller and McDonald cases should motivate the American people and the state legislatures to seek a constitutional amendment allowing states and cities to regulate or ban handguns and assault-style rifles.
We should look to Canada and Britain for guidance.
You go ahead and try to nullify one of the BOR. Let's see how that works out.
“He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.”--M. K. Gandhi
“If someone has a gun and is trying to kill you, it would be reasonable to shoot back with your own gun.”--The Dalai Lama