Thoughts on "an evolving constitution"
I tend toward originalism, and tend to see the idea of "an evolving constitution" or "a living constitution" as a conscious or unconscious exercise in scholarly/judicial will to power (the scholarly and judicial classes expressing a drive toward power that is lacking if the Framers' or the Americans' will is what matters). But in the extended remarks below I'll note a couple of thoughts on how the idea of an evolving constitution is in fact consistent with a vigorous view of an individual right to arms.
1. Akhil Amar's point on the 14th Amendment. At an AEI conference three years ago, he suggested that words change their meaning over time, and by infererence, that the meaning of the constitution can change as the meaning of its words change.
He then pointed out that in 1789 "bear arms" had a military connotation. With the exception of the PA minority request for a bill of rights (which spoke of a right to bear arms for hunting), bearing arms referred to military use.
BUT, he went on, by the time of the 14th Amendment (1868) "bear arms" is being used, not just once but frequently in the Congressional debates, as referring to purely private use. A petition of freedmen entered into the Congressional Globe asks protection of their right to serve on juries and to bear arms. Congressmen and Senators repeatedly say the the freedmen are being deprived of the right to bear arms, in contexts not of military service but of private possession and carrying.
2. Prof. Eugene Volokh, when filmed for my documentary, made another point. Like me, he doesn't buy into an evolving constitution. But, he asks, if there was such a thing, how would we determine that it had evolved?
If evolution in the eyes of Congress--from the Freedman's Bureau Act, shortly after the civil war, to the gun mfrs' liability act last year, Congress has 3-4 times passed legislation that treats the right to arms as an individual right, and never passed anything to the contrary. (It may have violated the amendment from time to time, but never voted out anything saying it doesn't exist or isn't an individual right).
If evolution in the eyes of the States or the people of the States -- every change to State constitutions over the last half century or so has been to make their right to arms broader and more individual.
If evolution in the eyes of the American public -- every public opinion survey shows that a majority of Americans believe they have an individual right to arms.
So if the right to arms could evolve, via views of Congress, states, or the people, then it has evolved in the direction of an increasingly individual right, not the other way around.
The only way you could say the Second Amendment "evolved" away from an individual right would be to say that judges, or the social class from which they tend to come, has come to dislike the right, and therefore it is undercut, regardless of what anyone else in America thinks. That, Prof. Volokh suggests, is the least tenable form of "evolution" -- not that he or I buy even its most tenable forms.
Our Constitution is "evolving" in the same sense that a one-celled organism might evolve into a shark--it can become something completely unrecognizable and utterly unforseen.
Posted by: Clayton Cramer at April 20, 2006 03:59 PM
I think I’m an originalist--or maybe a legalist. (Does the latter require being a lawyer?) Why shouldn’t the Constitution be what it obviously, patently was intended to be and is: a legal social compact? The framers were literate, wrote copiously in English, for posterity, and, on topic, and wrote less than three hundred years ago. What sense does it make to argue we cannot know their intentions while it is generally believed that archeologists can tweak out the social attitudes of some ancient Sumerian scribe or cave-dweller who had had no written language?
Alternatively, why shouldn’t we be suspicious of anyone so animistic/anthropomorphic that he/she/it views the Constitution as living, evolving? Not to overly poison the well, but don’t you know such personsgo home at night and dress up their pets in the style of their favorite entertainers or Uncle Fred?
Posted by: W. Bailey at April 20, 2006 07:29 PM
Prof. Volokh's point is well made. If the right has evolved anywhere, it has been in the individual rights direction - with the exception of certain people who don't want guns around.
Posted by: Christopher A. George at April 21, 2006 07:07 AM
The Constitution is a Contract-or a Covenent if you will between the people and the government We The People set up to address specific needs like build roads and defend our borders. There's no evolution there or anywhere else any more than to say if you shake a box of engine parts long enough the components will arrange themselves into a perfectly tuned and timed engine. The "evolving" Constitution appeals to those who have slippery constantly changing ideas about morality, truth or anything else.
Posted by: The Mechanic at April 21, 2006 01:20 PM