I often get frustrated wondering “What are they thinking? Do they actually think? Are they capable of thinking?”
For example, in my mind people are not consistent when they expanded the meaning of the 1st Amendment to include things that did not exist (such as the Internet) at the time of the writing of the Bill of Rights. Yet those same people intend to negate the 2nd Amendment by excluding things that didn’t exist at the time of it’s creation. What’s up with that? Are you insane?
This article helps with a certain aspects of those types of questions I have had.
In interpreting the Constitution, judges pay attention to social practices, and not only to judicial precedents. If federal and state governments have long regulated gun use, creating a tradition of such regulation, many judges would be reluctant to invoke the original understanding in order to upset that tradition. Tushnet finds that, since the Civil War, gun regulation has been common–and it has rarely been challenged on constitutional grounds. He concludes that the last century and a half shows a simple pattern: “A substantial body of laws regulating weapons possession and a small number of opinions addressing Second Amendment objections to such laws, with no opinions from appellate courts invalidating any modern regulations, and an apparent lack of interest by the Supreme Court in taking fundamental Second Amendment questions.”
In Tushnet’s view, there is an evident conflict between the original understanding and the legal arguments based on judicial precedents and social practices. He urges that in the face of such conflicts, the original understanding tends to yield. In the context of free speech, for example, we have gone far beyond the original understanding, protecting commercial advertising and even political dissent in ways that would have astonished the founding generation. Tushnet thinks that if we reject originalism, we will probably conclude, on the basis of social practices and judicial decisions, that the Second Amendment does not protect an individual right.
This gives me a model to conclude they aren’t entirely insane. It does sort of make sense. I worry about the Supreme Court in the D.C. v. Heller case considering the impact on all the people that deserve to be locked up but prosecutors only charged them with gun violations because it was so much easier than proving they had committed some violent crime. If the Court comes strikes down the D.C. law there will be lots of people in jail appealing their convictions. The disruption to society could be significant. The historical aspect of the laws and our society have to be somewhere in the minds of the justices.
But translating the logic above to an analogous situation will make my take on this clear:
In the deep south during the last century there was a long history of social practices, judicial precedents, and traditions of regulation of people of color. Therefore it is entirely appropriate during the 1960’s the courts should have rejected the original intent of the 13th Amendment and allowed whatever law the states and cities thought were “common-sense” for their situation.
There is only one correct way to handle this. If a government entity wants to implement a law that violates some original intent of the Constitution there is a proper way to go about that. They can amend the constitution to allow non-original intent. Anything else is a rationalization, an extremely serious threat to our enumerated powers form of government, and death to freedom.