Why Originalism Matters (Part V)

Modern Examples:

Most people do not believe that originalism takes into account modern events. For instance, what if the police used “infrared technology” outside a residence to determine if marijuana was being cultivated without a warrant. Is this an illegal search and seizure under originalism? Most say no because the Constitution does not take into account modern technology. The Fourth Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects all citizens from “unreasonable” searches and seizures without a warrant and probable cause. It does not matter what method or technology was used. If the home was searched without a warrant and it was deemed unreasonable, the act violated the constitutional rights of the home owners. The Constitution’s vagueness or broad provisions allow its meaning to account for modern advances in society.

How about a Commerce Clause example where manufacturing emissions and agriculture waste are being transported over state lines through the air and water? Our Founders certainly did not envision manufacturing pollution may affect the rights of citizens. Although, Congress has no power to regulate manufacturing and agriculture, but only goods and services traded across state lines, it is hard to envision how the Commerce Clause could be used for pollution or waste. This is certainly one of those borderline cases and I could see this one going either way. That being said, the best was to handle the situation would be by an amendment if the Constitution is out of date. Many Senators proposed amendments for the Commerce Clause such as Edward Costigan and Henry Ashurst during FDRs early years. Castigan wrote the Commerce Clause should be changed “to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade, and commerce to prevent unfair methods and practices.” Ashurst proposed the Commerce Clause should “regulate agriculture, commerce, industry, and labor.” Of course, these amendments were not needed when the FDR Court incorrectly granted Congress all these powers. However, if these amendments were passed (and I would have been against them because it yields too much power to Congress), it would have brought legitimacy to the Court’s rulings including regulating emissions and waste across state lines. Castigan and Ashurst proposals do prove one thing: The FDR Court completely changed the meaning of the Commerce Clause in the Constitution to meet their agenda.

How about a Second Amendment example. For the most part Justice Scalia used Originalism to guarantee the Fundamental Right to keep and bear arms for self-defense in his Heller v. D.C. majority opinion. Justice Stevens’ dissent never contests Scalia’s Originalism argument, but instead offers a different non-constitutional point of view in his opinion. Would the Second Amendment right extend to assault weapons or limitations on magazine rounds? For assault weapon and magazine regulations to happen the government must prove their regulations are not irrational, arbitrary, and discriminatory. This is not easy to do. In other words, it would be hard for the government to prove that assault weapon and magazine regulations would curtail crime by any substantial amount. Furthermore, it is hard to determine the difference between assault weapons and high powered hunting rifles. Hence, assault rifle bans can be seen as discriminatory because similar types of hunting rifles exist without regulation. In his majority opinion Scalia veered from Originalism when he pointed out some possible regulations for guns such as prohibiting felons and the mentally ill from owning a gun. Scalia incorrectly practices what he calls “faint-hearted originalism”. In other words, there are instances where he would veer from Originalism such as cases where precedent may trump Originalism. This is not correct, a judge should be consistent and follow the same methodology for all cases. Using Originalism and or Precedent is a means to have options to get the desired result. This is wrong. Regulations such as prohibiting felons and the mentally ill from owning a gun could further restrict the rights of someone who was wrongfully convicted or someone wrongfully diagnosed. What is the purpose of medication to help people with mental issues to function in society if we are going to restrict their Fundamental Rights with no exception? It is a stretch to say all felons and all people with a mental illness should be prohibited a Fundamental Right without exception. There is no difference when liberals argue to give felons back the right to vote. If a person is deemed responsible to vote, then should they be deemed irresponsible to own a gun? The Second Amendment was constructed so citizens can defend themselves not only from criminals but from a tyrannical government. If the Constitution failed and the federal government abused the rights of citizens then State militias had a right to defend its citizens. Using the original meaning, since citizens were allowed to keep and bear arms of military proportions during the founding period then this would equate to large magazine capacity and assault weapons today.

I am not in agreement with many aspects of the Constitution such as the Sixteenth Amendment (Income Tax), Seventeenth Amendment (Popular vote for Senators), the Takings Clause of the Fifth Amendment, and the fact the Constitution provides no term limits on Congress. However, as imperfect as the Constitution may be, I will respect the entire document: the good provisions and the bad provisions. Nothing in government is perfect so taking the good with the bad is nothing new. We cannot pick what we like and what we do not like. It does not work that way. As Sanford Levinson wrote “Almost all constitutional analysis, as a matter of brute fact, seem committed to a de facto theory of happy endings, whereby one’s skill as a rhetorical manipulator are devoted to achieving satisfying results.” Modern examples of Constitutional interpretation are meaningless because the truth of the matter is the Necessary and Proper Clause, the Commerce Clause, the Ninth Amendment, the Takings Clause, the Privileges and Immunities Clause, and the Tenth Amendment have no meaning and have been completely redacted from the document. This is the danger of amending the Constitution as proposed by scholars such as Bruce Ackerman – through Judicial Decisions. This would certainly make the Supreme Court the most powerful branch in the federal government. And we know the Court’s decisions will become even more biased based on political ideology and not neutrality to protect the rights of all equally if Amendment by Judicial Decision was law of the land. Judicial precedent is completely different from allowing precedent to amend the Constitution. This is very dangerous.