I am not suggesting answers to these various questions about the text of the Second Amendment or that Heller’s outcome was wrong, but rather I am claiming that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really a disguise for personal preferences, but his method is pure and neutral and keeps out personal predilections. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be. (Jack Rakove in his Pulitzer-Prize winning book, Original Meanings: Politics and Ideas in the Making of the Constitution, after giving reasons to doubt originalism as a viable theory of constitutional interpretation states, “On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor—and that may be as good a clue to the appeal of originalism as any other.”)

The Constitution does not allow for a merely mechanistic method of interpretation that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. The Constitution itself makes it impossible. That document contains broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . “ (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” in the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I lists specific congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstance as to what is “necessary and proper” or what is an “executive power.” What does “due process” or “equal protection” mean.  And so on; and so on; and so on. The Constitution cannot just be read and mechanistically applied. Constitutional decisions require contemporary interpretations of the words and phrases written centuries ago, and in spite of what some conservatives say, that will always permit personal values to affect the outcome. We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method, including trying to fix its meaning in the amber of 1787 or some other time, will eliminate the opportunity for personal values to affect the outcome. (The distinguished and learned conservative judge Richard Posner has stated, “It is questionable whether there has been anyone in the history of law who could really divorce his jurisprudential views from his personal and political ones. . . . It’s hard to get excited about judicial conduct that violates principles unless it is bringing about results you don’t like.”)

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with an unchanging meaning. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted. When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure. This really addresses the most fundamental question about our fundamental charter. Is our Constitution only backward looking giving true sovereignty over us to the people of 1787 or did the framers of the Constitution, in the words of the recently retired Justice Anthony Kennedy at his confirmation hearing, “make a covenant with the future”? Are the framers to be admired because they thought they had the answers to whatever might arise, or should they be admired because they were trying to build a nation that would endure for generations?

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and supposedly removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.




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