THOUGHTS ON ORIGINALISM PART 1

“ORIGINALISM” IS DEFINED AS “the theory of interpreting legal texts holding that a text in law, especially the U.S. Constitution, should be interpreted as it was understood at the time of its adoption. The original meaning of the constitutional text can be discerned from the most likely ideas of the text by the framers of the Constitution, or inferred from background events, public debates, relevant dictionaries, and other legal documents of that time.” 

This particular definition comes from the Legal Information Institute of Cornell Law School.

Wikipedia adds, “Critics of originalism often turn to the competing concept of the Living Constitution, which asserts that a constitution should evolve and be interpreted based on the context of current times.”

Hmm… Good food for thought here. Indeed, enough for Parts 1 and 2 today and tomorrow, sources including Cornell Law School’s Legal Information Institute, Wikipedia, and a timely piece of satire from the Counterpoint Navigating Knowledge. 

Background. Wikipedia notes, “Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.” 

And let’s see the hands of current politicos who bristle at F.D.R.’s New Deal. Extra points for guessing their party.  

Wikipedia also observes, “The first modern originalist on the Supreme Court was Justice [Antonin] Scalia, followed by [Clarence] Thomas and [Samuel A.] Alito. President Trump’s appointees [Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett] are seen to mostly follow originalism.”

A Political Aside. Hmm… I wonder what would have happened but for the hypocritical Senate Majority Leader Mitch McConnell’s timing objection to President Obama’s March 16, 2016 nomination of Merrick Garland to the Supreme Court. McConnell later managed to forget this lofty principle when Trump nominated Amy Coney Barret in September 29, 2020, less than 35 days before the election. 

But I stray from our topic of originalism.

Originalism and our Constitution. Our Founding Fathers put together three of history’s finest documents in The Declaration of Independence, The U.S. Constitution, and its first ten Amendments, our Bill of Rights.

Image from the National Center for Constitutional Studies.

Let’s not nitpick about whether originalists today should or should not include these first ten amendments that came later. Indeed, one of the them, now numbered as the Second Amendment, is the topic of my essay today.

To Keep and Bear Arms. The 1789 Joint Resolution of Congress includes “Article the fourth… A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

These days, advocates invoke the Second Amendment to promote ready purchase of guns and ammo, even to weapons principally intended for military applications (i.e., AK-47s), the enhancement of armament to military levels (i.e., bump stocks), and the ability to parade such armament around at will (i.e., concealed/carry regulations). 

What’s more, originalist arguments are often offered in legalistic approval of these.

The rest of us are genuinely and rightly horrified when an armed individual deprives others of “life, liberty, and the pursuit of happiness,” to cite another familiar portion of our treasured national documents. 

Tomorrow in Part 2, a university professor gets specific about originalism and firearms. ds

© Dennis Simanaitis, SimanaitisSays.com, 2024