There has been a long debate on how we should interpret the Constitution; should we try to analyze the Constitution with the original framework implemented by our Founding Fathers or should we try to analyze it as a living document where it adapts to recent developments?
Despite that there are debates among lawyers and scholars on the original meaning of the Constitution, Conservatives make claims to somehow understand what our Founding Fathers meant when they wrote the Constitution. If your position is consistent throughout the amendments, then the debate will be on interpreting the Constitution as a ‘Living Document’ or through its ‘Original Intent.’
However, the debate cannot solely focus on the interpretation of the Constitution because there are inconsistencies in the interpretation of the amendments. For example, the late Supreme Court Justice Antonin Scalia said in a 2008 NPR Review, "If you somehow adopt a philosophy that the Constitution itself is not static, but rather it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you eliminate the whole purpose of a Constitution. And that is essentially what the so-called living Constitution leaves you with.” Coming from a leading conservative voice on the high court, it’s safe to state that most conservatives present a similar attitude.
Now, here’s the irony, the Second Amendment was challenged in 1876. The Supreme court case of United States v. Cruikshank, it was held that the right to bear arms “is not a right granted by the Constitution.” But after much push from the conservatives and the National Rifle Association (NRA), the NRA has managed to change our view on the Second Amendment. In fact, in 2008, the District of Columbia v. Heller court case stated that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
You might ask, why the change?
Well, the NRA has successfully pushed their agenda that the Second Amendment means what they want us to believe. But if an amendment is long held to one belief and then changed to another, isn’t this the definition of the ‘Living Constitution?’ They might argue that it’s not because they are simply redefining its original meaning, but they use current events to impose their beliefs.
The NRA has successfully redefined the interpretation from the militia to give the rights to individuals. In “Dead or Alive: Originalism as Popular Constitutionalism in Heller” by Reva B. Siegel, she explains the meaning of the Second Amendment, specifically in understanding ‘well-regulated militia’, is changed using evidence after its founding. Siegel continues by tracing the history of how Scalia construes the definition of these terms. For example, the majority in the District of Columbia v. Heller speculate that ‘bear arms’ has nonmilitary meaning. However, in the original draft of the Second Amendment, James Madison stated that “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Yet, Scalia and the rest of the majority failed Madison’s statement as an interpretation of the Second Amendment, instead using the 1998 edition of the Black’s Law Dictionary.
When looking at the information that’s presented in the way the District of Columbia v. Heller majority dealt with the Second Amendment, we saw they heavily relied on recent discussion on the Second Amendment. Hence, if there’s anything that should be considered as the ‘Living Constitution’ then it’s should be the journey of the Second Amendment from the United States v. Cruikshank to the District of Columbia v. Heller.
In conclusion, I don’t think there’s anything wrong when the debate is on the interpretation of the Constitution. I just think there’s some sweet irony. Like former President Barack Obama said " -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world." So I’m all for trying to analyze the amendments using contexts from the Founders and the current events.
So Conservatives, how about we do this for all the amendments and not by implicitly using when it favors our agenda.
1. NPR.org. (2008). Scalia Vigorously Defends a 'Dead' Constitution. [online] Available at: http://www.npr.org/templates/story/story.php?storyId=90011526 [Accessed 17 Oct. 2017]
2.Justia Law. (2017). United States v. Cruikshank 92 U.S. 542 (1875). [online] Available at: https://supreme.justia.com/cases/federal/us/92/542/case.html [Accessed 17 Oct. 2017].
3. Law.cornell.edu. (2017). DISTRICT OF COLUMBIA v. HELLER. [online] Available at: https://www.law.cornell.edu/supct/html/07-290.ZS.html [Accessed 17 Oct. 2017].
4. Siegel, Reva B., "Dead or Alive: Originalism as Popular Constitutionalism in Heller" (2008). Faculty Scholarship Series. Paper 1133. http://digitalcommons.law.yale.edu/fss_papers/1133
5. Glaberson, W. (2000). Word for Word/The Second Amendment Debate; To Bear or Not to Bear: It Depends on How You Read History. [online] Nytimes.com. Available at: http://www.nytimes.com/2000/09/24/weekinreview/word-for-word-second-amendment-debate-bear-not-bear-it-depends-you-read-history.html [Accessed 17 Oct. 2017].
6. Obama, B. (2006). The Audacity of Hope: Thoughts on Reclaiming the American Dream. Vintage, p.90.