Reading the Constitution: Originalism That Defies History

Originalism has been manipulated by the right to mask its approach to determining the values enforced by the Constitution. The originalists of the right are entitled to their own opinions, but not to their own text, and not to their own history.
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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).

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