As the election approaches, many conservatives have had concerns about an increase in gun control as a result of the likely president, Hillary Clinton, and the constitutionality of such a “gun grab,” while many liberals continue to come out in support of this increased regulation of firearms for the average citizen.
Both sides of the debate have acknowledged that the key to being able to radically change the interpretation of the Constitution lies in the ability to stuff the court with individuals who happen to agree with them on policy and would use the court as a weapon rather than for its intended purpose, to interpret law.
As a result, I am going to discuss the various approaches of the Supreme Court to Constitutional law, and I will be discussing the framework each side uses for interpretation, as sadly the document is trumped by ideology.
First, in all law, with the exception of constitutional law, legal minds adhere to strict textualism. This is an ideology which does not care for intent, goals or what is perhaps best policy, but it only makes rulings based on what is written on the paper, leading to consistent and predictable rulings.
For example, the textualist would read a law which states, “For the health of the people, tobacco shall be punishable by 15 years incarceration,” and meaning anyone using tobacco is immediately subject to the penalties described by the law.
This method of ruling is how non-lawyers are taught that laws work, and it is intuitive, leading to law being understood by the common man and the elite equally. This creates a sense of fair play, with political preference irrelevant to a verdict.
Unfortunately, as previously mentioned, this method of ruling does not apply to constitutional law. As a result, both liberals and conservatives have developed their own separate camps for modern interpretation which are surprisingly similar.
In the left’s corner, we have the living constitutionalists, who fundamentally argue that due to the fact that the American Constitution is nearly 300 years old and many portions have never been edited, it is the role of the court to view it in a so called modern lens.
As a result of this method, the ability to change the Constitution lies with the court, allowing for certain so-called problems to be edited out without the requirement for a vote. This method further argues that since government gains power from the people, if the court believes the people support a particular change, it is changed without a formal vote.
In some ways this is good, as it allows for the intentionally vague or pegged to societal norms portions of the Constitution to be interpreted.
For example, what is cruel and unusual punishment? Do we use the founders beliefs or do we instead use a modern interpretation more consistent with our societal values?
The issues with this, however, are clear with what constitutes majority opinion, and who determines the ethos of society.
As opposed to calling for an actual vote and garnering the two-thrids legislative support required, the left would rather dodge the issue and claim changes often, ignoring the will of the majority through five people, some of whom may have been appointed decades ago.
Furthermore, this method can strip the rights of a minority as a result of an opinion of a small majority, or put new burdens on some to favor others. By skirting the democratic process, unpopular or controversial decisions do not have to be discussed, such as whether or not women are permitted to murder on the basis of convenience or the religious can disallow homosexuals to participate in society based on ancient beliefs.
In short this method can justify anything on the basis of an opinion of a majority of American’s despite issues having no clear polls or consensus, and becomes the opinions of the justices rather than the people.
Since the constitution in theory exists to act as a statement that the government cannot take away certain rights without overwhelming majority consent, this is subverted harming the history fragile democratic process.
In the right’s corner, we have what is called originalism, whose adherents argue that the Constitution should be interpreted through the founders lens.
This, for all intents and purposes, is the same as what the liberals believe, only we have shifted the perspective from modern society to a group of founders. This creates a different set of problems.
First, the founders often argued and disagreed on many of the key issues, and they even disagreed on interpretations of the Constitution within years of the documents passing.
As a famous example, judicial review was not expressly stated in the Constitution and Jefferson argued that the Supreme Court could only review a very small set of cases rather than the vast power and authority they have today.
The problem of the right is the same inherently as that of the left. Whose interpretation do we value? How do we measure a majority, when the decision ultimately falls on as few as five people?
When compared to strict textualism, both sides seem petulant and obtuse, intentionally hiding behind ambiguity rather than hard law, and has lead to concerning trends in our political system.
In this case, the “intent of the founders” can be used much like “the belief of the people” which is to say it can mean whatever is convenient at that time to the justices.
At the end of the day, the problem lies in the fact that both groups would rather subvert the Constitution as opposed to having a dialogue, allowing their personal opinions to trump what is written whenever and wherever convenient.
When we compare this methodology to textualism, we get a hodgepodge of rulings with little to no consistency with justices acting as dictators rather than judges.
As the two parties have become more polarized and laws more difficult to pass, we have given more and more power to unaccountable leaders for life, rather than forcing this country to have a dialogue about what if anything in The Constitution needs change.
Dave Owen is the opinion editor for The Dakota Student. He can be reached at [email protected]