From Sanford Levinson, Professor of Law of the University of Texas, on interpreting the Constitution:
“It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens. Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.â€
He must hang out in very different bars than the ones I’ve known, but the assertion is interesting. The article goes on to say:
Those arguments can and should have consequences, according to scholars who endorse what they call “popular constitutionalism.†“Basically, it’s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,†Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.
This is versus originalism, which essentially argues the meaning of the constitution doesn’t change over time, and its meaning is divined either through original public meaning or original intent (of the founders). I’m probably a bit more of a pragmatic originalist. I think you have to be rooted in the text of the document, and when its meaning is apparent and has a clear meaning, you interpret along textual lines. But I also tend to agree with Jefferson, who once wrote:
The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.
My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.” So when Alan Gura, in the the oral arguments of McDonald says the court should be originalists in its identification of a right, but take a modern view of that right, I can relate to what he’s saying.
How much of a role should originalism play in constitutional interpretation versus such a “Popular Constitutionalism” method? Keep in mind you will generally arrive at an individualist Second Amendment either way. But originalism and popular constitutionalism probably yield different results when it comes to interpreting the boundaries of that right. The founders’ concern, which prompted the inclusion of the Second Amendment, had very much to do with the distribution of military power in society and keeping military power be in the hands of the people. It’s not that they didn’t believe in individual self-defense, but that wasn’t the primary intent. From the founding up to the civil war, the public understanding became centered around individual self-defense. This is largely the popular understanding today, and what The Court went with in Heller. It’s always seemed to me that original public meaning originalism (as supposed to original intent) is actually a form of popular constitutionalism, though one that looks back at the meaning at the time the text was adopted, instead of how people view it today. A Second Amendment right centered on the original intent distribution of military power probably looks very different from one centered on self-defense in an original public meaning context, which looks different yet from one in a modern popular constitutionalism context.
I’m not sure that any method has to necessarily disparage the other when it comes to the right to bear arms, but which one is most legitimate? Which one is most rooted in the real world? Which one best preserves liberty?
