An Interesting Constitutional Question

Liberal jurists have often referred to the principle of 'strict constructionism' with regard to Constitutional interpretation as 'old hat.' The notion that 21st century Americans must be bound by a document that was written within the context of the 18th century seems to them to be stale, antiquated, and unsuitable for modern times.

Thus, 'liberal' or 'progressive' jurists coined the term 'the living document' to designate their viewpoint that the process of Constitutional interpretation must be given the broadest leeway possible in order to make the document relevant to our times.

For example, since the Framers could not have possibly envisioned a time in the future when large, heavily populated areas would be overrun with handguns, often obtained illegally, then they could not have possibly meant that the Second Amendment should provide an unconditional cover for bearing arms.

Thus, using the 'living document' method of interpretation, such jurists would be in support of 'reasonable restrictions and limitations' on a Constitutional right.

The problem, of course, with such a view is that the principle can be applied to any of our guaranteed rights, including First Amendment rights. The Framers could not have envisioned a time when society would be dominated by media coverage, including peering into the private lives of citizens, complete with outlandish charges and accusations we have come to expect from tabloid journalism.

Thus, a case could be made that utilizing the principle of the 'living document' school of interpretation, progressive jurists and politicians could claim that reasonable restrictions and limitations on free speech and freedom of the press are entirely appropriate.

Clearly those who have espoused the living document method of interpretation have a history of supporting restricting the rights delineated in the Constitution. Thus, we do not actually have complete freedom of religion in this nation due to the numerous restrictions placed upon religious expression in the name of 'diversity.'

The same could be said for freedom of speech.

And we know that the Second Amendment right to bear arms has been attacked and restricted relentlessly by those who adhere to the 'living document' method of interpretation.

Perhaps the only individual right that has escaped such limitation and restriction is the freedom of the press. One can surmise that the press has been granted a pass because so many who adhere to the 'living document' school of thought work within the media.

It is always more expedient to restrict someone else's rights than your own.

Thus, an interesting Constitutional question comes to the forefront of the debate. What principle should be used to interpret the Constitution in modern times, when clearly times have changed drastically since the 18th century?

Originalists, or 'strict contructionists,' are often mischaracterized. Of course, strict constructionism does, indeed, mandate that the original intent of the Framers is the single most important consideration in arriving at a correct interpretation of a Constitutional issue. But this method of interpretation goes beyond merely the words printed on the pages of the original documents.

For example, when one truly wishes to discover the meaning of the Second Amendment, one must go to the original intent of the Framers. What did those words mean to them at the time?

Fortunately for us, they told us. The Federalist Papers, the writings of Jefferson, Madison, Washington, Franklin, and others spell out in detail the exact meaning of the Amendment. They feared tyranny above all and its inherent attempt to remove God-given rights.

Firearms in the hands of ordinary citizens were viewed as a means of empowering the people against the power of oppressive government.

Any serious consideration of the meaning of the Second Amendment must start here and come to terms with this basic philosophy of the Founding Fathers.

But the process of originalism doesn't stop there.

One must look at the underlying principle that provides the foundation for all future attempts to interpret Constitutional issues. And that principle is expansion of rights.

The Constitution itself states that there are many other rights that belong to human beings which are not spelled out specifically in the document itself, but which are valid nonetheless. The absence of specific references to those unnamed rights is in no way to be construed as implying that those rights are not guaranteed as well.

This very statement provides the foundation of the principle of expansion of rights, which for a century and a half was an important precedent in Constitutional interpretation. Those matters that the Founders did not or could not specify at the time must be judged by the general principle of expansion of rights rather than restriction of rights.

How important has this principle been to Constitutional interpretation? Without it, slaves would have never been freed or given the right to vote. Women would not have been given the right to vote.

The nation has sometimes strayed from this basic Constitutional principle, much to its peril. Prohibition is an example. Individual rights were restricted and removed rather than expanded and protected.

The result was rampant crime and a lucrative black market for criminals.

The nation learned its lesson and repealed Prohibition. Yet those who espouse the so-called 'living document' method of interpretation still seek to limit individual rights. What they have not been able to do at the national level they have succeeded in doing at the local and state levels.

The creeping crawl of government expansion leads to oppression. In Europe, for example, we see governments so afraid of the people that laws have been passed that prevent individual citizens from owning firearms. Our own federal government in the U.S. apparently has been afflicted with the very same disease. We see increasing signs year by year that our own government is just as afraid of its own citizens as it is the terrorists, to the point that government has sought at every hand to remove every means of self-protection the citizens have at their disposal.

This is precisely what the Founding Fathers feared more than anything else.

Thus, it is absolutely essential in these strange and interesting times that we appoint to the bench only those jurists who live by the Framers' principle of expansion of rights. As it stands now there are far too many who would restrict every single right guaranteed and protected by the Constitution.