Overstepping Bounds & Constitutional Conventions

November 23, 2010

This past week, United States Supreme Court Justice Antonin Scalia spoke at the University of Richmond about originalism (the method of Constitutional interpretation he subscribes to, in which the language of the document is given its most literal meaning).

In Justice Scalia’s opinion, the Founders of this country spoke very clearly through their Constitution and it’s not up to us to re-found America or its laws; rather, our task as citizens is to uphold those original Constitutional values and live according to them. Treating the document as something living and changeable, Justice Scalia said, allows “five out of nine hotshot lawyers to run the country” (presumably by arguing for whatever whimsical interpretation of the Constitution most fits the momentary needs of their client).

Justice Scalia also criticized the broadening interpretation of the 14th Amendment’s due process clause, which guarantees access to the process of law (courts, judges and the like). Lately, he says, that clause has been expanded well beyond its intended scope to guarantee particular freedoms, though it was never meant by the Founders to be a guarantee of liberties; only a guarantee that liberties wouldn’t be taken without some kind of legal process.

Messrs. Washington, Jefferson and Adams lived in a world in which the English monarch could confiscate their lands and holdings at will; they wanted their new government, should a similar need to confiscate arise, to at least be accountable to some fair judicial process, pre-confiscation, wherein the owner of requisitioned things could plead his case against the requisitioning.

Specifically, Justice Scalia spoke against the applicability of the due process clause being enlarged to fit abortion. In his opinion, the clause doesn’t guarantee the freedom to have abortions… only the freedom to not be deprived of them without due process. Implicitly, then, people can be deprived of the freedom to have abortions so long as the deprived have their day in court first. Justices should uphold the original meaning of the Founders’ Constitution, Justice Scalia believes; they shouldn’t take it upon themselves to issue rulings which extend its reach to areas it was never intended to reach, or which force parts of it to perform functions they were never intended to.

People do, and probably always will, disagree with Justice Scalia. They argue that judges can’t rely on the intent of the Founders in coming to conclusions because their intent is almost impossible to guess at. They lived centuries ago, in a world very different from ours. Plus, a good number of words and grammatical constructions don’t have the same meaning today as they did in 1776.

Still, there is one intention of theirs which is very clear today, and which is easily identifiable because it’s set down in all of our founding documents and is one of the most essential tenets of our government: there are three branches of government and they operate independently of each other, so that any one might check and balance the other two. No one branch was meant to have more power than another. Revolutionary Americans fought a war to throw off one monarch, and they meant for their founding documents to guard them against any one branch of their new government taking too much power and becoming a new monarchy.

In that regard, Justice Scalia, politically correct or not, is absolutely right. It is not for one branch of government to do another’s job. If there is one founding intent we can be sure of, it’s that government is limited in this regard: each branch does its own work, and nobody else’s. And extending the reach of the Constitution, when and if necessary, is not the judicial branch’s job.

Are there likely some things in our founding papers which are outdated? Probably. Provisions dealing with African-Americans and women come to mind most quickly. Are there some portions of our Constitution which should be changed or made more modern? There probably are, which is why that document includes a mechanism for revision: the Constitutional amendment… not the courts.

It’s possible that the particulars of the Constitution (though never its core ideals) have to change and adapt over time to address “advances” in culture and technology. What is equally apparent is that, when it comes to how those changes are effected, Justice Scalia is dead-on: it’s not the courts’ job to make them. That task belongs to the legislature, and to the citizens of this country. If the Founders were clear about anything, it’s that.

Advertisements

Keep & Bear

March 17, 2010

The Supreme Court of the United States spent the month buried deep in the wilderness of McDonald v. Chicago, a case challenging the legality of Chicago’s super-restrictive handgun ban.

Plaintiff there argues the ban violates the Second Amendment of the United States Constitution, our right to keep and bear arms. Defendant maintains the Constitution applies only to the Federal government and leaves state and city lawmakers free to restrict guns as they please. Most pundits give odds to the plaintiff, but we won’t get that far today.

Instead, let’s step back and look at the two competing paths of thought Second Amendment arguments usually travel. The first is Justice Antonin Scalia’s beloved formalism, in which we examine the plain meaning of a law: the right to keep and bear arms is spelled out plainly, so there’s no need of discussion. The Founders have spoken clearly and the people may own and carry guns. This path makes sense because, if for no other reason, the men who wrote the Constitution were very literate. Most were attorneys. If they’d meant for their document to be open to interpretation, they could’ve said so. They didn’t.

The second, opposite view is that the Constitution can’t be read formally, as Justice Scalia would; rather, it’s a “living document,” whimsical interpretations of which are allowed and encouraged, and its authority comes not from the Founders’ words but their intent. This side of the street argues that the arms our forefathers had in mind were a far cry from today’s high-powered handguns and sawed-off shotguns, and so laws written with muskets in mind shouldn’t be extended to Uzi’s.

(Of course, they aren’t. Uzi’s are automatic guns, which means they fire bullets as long as the trigger is held down and there are bullets to be fired. Automatic guns like Uzi’s have never been legal for public ownership in America. They’re strictly the province of criminals, and no amount of laws will ever dissuade those guys… if criminals cared about laws, they wouldn’t be criminals).    

If read formally, the Second Amendment obviously guarantees Americans the right to own and carry (“keep and bear”) weapons. There’s no real ground for any other opinion, which is why gun-control advocates prefer to call the Constitution a living document, subject to interpretation, and not read it formally. And their interpretation is, the Founders intended the Second Amendment for antique muskets, not today’s arms, so its protections shouldn’t extend to modern guns.

The problem is, the Founders were talking about today’s guns, in a way. Washington, Jefferson, Adams, Franklin and the rest of that Revolutionary generation fought a terrible war with the English on American soil, in American cities, and on American streets… and then did it all over again in 1812. Years earlier, they’d fought the French & Indian War, and Native American attacks were a frequent worry (justified or not). 

The generation which composed the Second Amendment spent a good deal of its adulthood at war, fighting and killing, and guns were second-nature. In addition to the constant threat of Indian or foreign violence, Americans believed firmly in their right to shoot each other; duels were commonplace and assumed legal, unless otherwise noted. President Andrew Jackson, who had fought in the Revolutionary War, once remarked that he had been shot so often in duels and had so many bullets rattling around inside of him that when he walked he sounded like a bag of marbles.  There was little organized police activity; certainly no squad cars or radio patrols.

Further, the framers didn’t buy groceries, except exotic items which couldn’t be produced on their own land; they farmed and hunted. Guns fed them. Lucky, then, that they had guns… most Native Americans made do with arrows still, and only got guns by trade with colonists. They made no guns of their own, though the technology was hardly new. (By 1776, firearms had existed for a long time and were being refined each year; a version of the automatic machine gun existed in England as early as 1718. The Founders, as veteran military campaigners, knew well how quickly and effectively guns were developing).

The point is, a formal constructionist reading of the Second Amendment means gun-control advocates lose; the language is just too clear to support anything but strong and full gun rights. So they argue instead for a lenient take on the Constitution and claim it’s open to interpretation and that people should look to the intent, not the words, of the framers. In their opinion, the framers didn’t foresee the availability or power of modern guns when they guaranteed the right to keep and bear them, or intend we should avail ourselves of them as we once did muskets… but the fact is, they did. They wrote the Second Amendment fully aware of the new, deadly weapons which were introduced every year. When they announced “the right of the people to keep and bear arms,” they intended to reference the biggest, baddest arms then available, and they knew those arms were getting bigger and badder by the day.

The Founding Fathers wrote our Constitution in a brutish, violent land. There was little, if any, law enforcement. Men fought duels regularly and shot their food. In short order they fought two major wars against English Redcoats, one against the French, and scores of smaller territory skirmishes. They were threatened constantly by Native American violence, by slave revolt, and by each other. Guns were a high technology, compared to traditional swords and arrows (which were still the norm among many), and they were the most dangerous invention of their time. Machine guns had existed for decades, alongside canon and mortars, and the Founders knew that guns were getting better by the day. Washington especially was a military man, and aware of the progress tinkerers were making with new guns. It was his job to know. 

The Founding Fathers knew exactly what guns were when they wrote the Second Amendment, and the knew how violent men could be and how lawless things could get. They didn’t write about the right to keep and bear some arms, and we can assume that, because of their legal training, they would have been clear if that’s what they had intended. They simply wrote “arms”: knives, daggers, swords, sabers, bayonets, spears, pistols, muskets, rifles, repeating rifles, early machine guns, canon, mortars, grape shot, shotguns filled with nails, bombs and more… the deadliest, most destructive arms then available. There was plenty the Founders could’ve restricted, if they’d so intended, but they didn’t. They intended for every American to be as well-armed as was necessary for his safety in a hazardous country. 

The framers’ world wasn’t that much different from ours, or any less violent. Guns weren’t any less deadly than they are today (and the really deadly new ones, the automatics, are already outlawed and have been for a long time). Their intent wasn’t just to guarantee the right to carry flintlock muskets, but the right to carry arms, in whatever form and with whatever technological innovations are available, in an uncertain time.