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Speeches
Originalism: Founders, Judges and modesty
P A Keane
In January this year in Tuscon Arizona, an obviously disturbed young man shot a number of people, killing among others a
Federal Court
Judge and a nine-year old girl. A Member of Congress was seriously
wounded. There was some speculation in the media that this incident
might
reawaken public debate in the U.S. about the ready access to firearms allowed
in that country. That speculation has proved
to be groundless; there has been
no public debate about that issue. No US politician seems to want to take the
issue on. And to
be fair to those politicians, any debate would be a waste of
their own and the public’s time.
In 2008, in District of
Columbia v Heller the Supreme Court of the United States had to decide whether a federal law
passed in 1975 forbidding possession of handguns, loaded
rifles and loaded
shotguns within the District of Columbia, was in violation of the Second
Amendment to the US Constitution. The court ruled by a majority of 5-4 that it
was. The opinion for the majority was written by Scalia J.
In 2010 in McDonald v Chicago,
the Supreme Court, in an opinion written for the majority by Alito J, extended Heller
to strike down most gun-control laws in the States as well.
The state of affairs brought
about by these very recent decisions is remarkable: it is not vouchsafed to
the collective wisdom of
American citizens of the present generation, alone of
all the peoples of the earth, to determine whether there should be legal limits
upon the general availability of firearms in their country. I thought it might
be opportune this evening to reflect upon the circumstances
whereby this
generation of the American people came to be so diminished, and upon what these
circumstances might say to those of
us who admire, and may even be disposed to
emulate aspects of, American constitutional arrangements and jurisprudence.
As to the circumstances which led
to this state of affairs, the decisions in question seem to be a triumph for
the originalist approach
to constitutional interpretation. Justice Scalia is
the Court’s leading originalist. Originalism is, of course, the theory of
constitutional
interpretation which looks to interpret the text of the Constitution
by reference to evidence of what the Framers really meant.
There are some general
difficulties with originalism as an approach to constitutional interpretation.
It may seem a little optimistic
to look to extraneous expressions of the
attitudes of men, who lived at the very beginning of the Industrial Revolution,
to derive
a definitive understanding of how national life should be organized
two hundred years after their death. There is reason to think
that they did
not have such a grand ambition but were much more modest in their expectations.
In M’Culloch v State of Maryland,
Chief Justice Marshall described the Constitution as “intended to endure for
ages to come, and consequently, to be adapted to the various crises of human
affairs.” Some might think
that the not infrequent massacre of ordinary
citizens and the nobler politicians by troubled souls would qualify as a “crisis
of
human affairs”.
At the other end of the political
spectrum at the time of the founding, Chief Justice Marshall’s distant cousin,
and sworn political
enemy, Thomas Jefferson, when he was the US Ambassador to France, wrote to his friend James Madison less than two months after the
fall of
the Bastille:
“No society
can make a perpetual Constitution or even a perpetual law. The earth belongs
always to a living generation.”
Further, it seems unduly
optimistic to assume a level of unanimity among the Founders about matters on
which some did not express a view outside the Constitutional text on a
given subject. Indeed they may even have had views contrary to those expressed
in the
text which they deliberately suppressed for the sake of reaching a
workable consensus.
Benjamin Franklin said as much
in his remarks to the Federal Convention before the adoption of the
Constitution in 1787. Franklin said:
“For having
lived long, I have experienced many instances of being obliged by better
Information, or fuller Consideration, to change
Opinions even on important
Subjects, which I once thought right, but found to be otherwise.”
Franklin said that he hoped:
“that every
member of the Convention who may still have Objections to it, would with me, on
this occasion doubt a little of his own
Infallibility, and to make manifest our
Unanimity, put his name to this Instrument… Thus I consent, Sir, to this Constitution
because I expect no better, and because I am not sure, that it is not the
best.”
Finally on this point, the
principal draftsman of the US Constitution, the redoubtable Gouverneur Morris,
rejected the idea of trying to resolve uncertainties by looking at the
contemporaneous views
of the Founding Fathers outside the constitutional text.
In 1803 he wrote the following in a letter replying to a query about the
intent
of the Framers of the US Constitution on a particular point:
“It is not possible for me to recollect with precision all
that passed in the Convention while we were framing the Constitution; and, if I
could, it is most probable that meaning may have been conceived from incidental
expressions different from that which
they were intended to convey, and very
different from the fixed opinions of the speaker.”
Anyone who has experience of the
process of producing a document in committee will appreciate the force of what
Morris wrote.
The originalist approach has
previously led to results which seem, to us at least, distinctly odd. Thus in 1998
in Grupo Mexicano de Desarrollo SA v Alliance Bond Fund, Inc,
Scalia J, delivering the opinion of the Court, over the dissent on this
point of Stevens, Souter, Ginsburg and Bryer JJ, held that
US Federal Courts
have no power to grant Mareva injunctions or Anton Pillar orders
because the content of the equitable jurisdiction of the Federal Courts was
fixed in 1789 when US law ceased to be tied to
that of England at which time
the Court of Chancery had not yet exercised any such power.
To conclude that wholesome developments
of equitable jurisdiction, such as the Mareva injunction, were thereby
forever denied to US Federal Courts seems a little extreme. On this approach, the
Chancellor’s foot was
not merely measured, it was amputated and then kept in
formaldehyde.
These general difficulties aside,
an examination of the two recent Supreme Court cases on the Second Amendment provides
particular
reason to doubt whether an originalist approach to Constitutional interpretation
can, in truth, sustain the interpretation placed
upon the Constitutional text
by the majority.
The Constitutional Text
Let us look at the Constitutional
text. The Second Amendment says:
“A well
regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not
be infringed.”
The minority of the Supreme Court
judges in Heller, Justices Stevens, Souter, Bryer and Ginsburg were of
the opinion that the right conferred by the Second Amendment was conferred,
not
upon individuals, but upon the People, to ensure the maintenance of a
well-regulated militia.
One might respectfully observe
that their Honours’ opinion seems to reflect the plain meaning of the text. The
right conferred by
the Second Amendment is expressly said to exist for the
purpose of facilitating the existence of a militia. That militia is itself
to
be “well-regulated”; not, be it noted, “well-armed” or “well equipped”, but
“well-regulated”. I take it as obvious that regulation
of the militia would
extend to regulating the use of firearms by the members of the militia as such:
their officers could, for example,
expect to be obeyed if they ordered them to
lay down their arms. It seems odd that on the authority of these recent
decisions, the
use of firearms by members of the militia may be regulated, but
not the use of firearms by individuals outside the militia.
More importantly, the right to
keep and bear arms is expressed to inhere in the People. It is “the People” who
brought forth and announced
the establishment of their new system of government
in the Constitution. The US Constitution expressly proceeds on the postulate,
stated in Article 1, Section 2, and the First, Second, Fourth, Ninth and Tenth
Amendments, that “the People” exists as a community organized and functioning
as
such in their town halls, churches and village greens, in the several states,
anterior to the arrangements put in place by that People
for the government of
the United States.
To put the point directly, the Constitutional
text does not suggest that a law which prohibits the possession of firearms,
otherwise
than in accordance with a state law regulating its militia, abridges
the People’s right to keep and bear arms.
To support the conclusion that
the language of the Second Amendment is, as a matter of its original intent,
apt to guarantee the keeping
of weapons by individuals as an end in itself, Scalia
J, who wrote the majority opinion in Heller, referred to the
writings of Blackstone. It is not surprising that those who accept the
originalist premise should look to Blackstone
to discover the original intent.
In 1999, in Alden v Maine,
the US Supreme Court described Blackstone’s work as “the pre-eminent authority
on English law for the founding generation”.
Scalia J, writing for the
majority in Heller, said of Blackstone:
“By the time
of the founding, the right to have arms had become fundamental for English
subjects. See Malcolm 122-134. Blackstone,
whose works, we have said, ‘constituted
the pre-eminent authority on English law for the founding generation,’ cited
the
arms provision of the Bill of Rights as one of the fundamental rights of
Englishmen. See 1 Blackstone 136, 139-140 (1765).
His description of it
cannot possibly be thought to tie it to militia or military service. It was,
he said, ‘the natural
right of resistance and self-preservation,’ id.,
at 139, and ‘the right of having and using arms for self-preservation and
defence,’ id., at 140; see also 3 id., at 2-4 (1768). Other
contemporary authorities concurred. See G. Sharp, Tracts, Concerning the
Ancient and Only True Legal
Means of National Defence, by a Free Militia 17-18,
27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English
Constitution 886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory
Reflections on Police 59-60 (1785). Thus, the right secured in
1689 as a
result of the Stuarts’ abuses was by the time of the founding understood to be
an individual right protecting against
both public and private violence.”
Blackstone
The irony of invoking the support of Blackstone for this “natural right” can be seen first by noting that in 4 Commentaries 55, Blackstone recognized that this supposedly fundamental natural right was
not so fundamental or natural that it could not sensibly
and lawfully be
abridged in the case of English Catholics convicted of the heinous crime of not
attending service in the Church of
England. Thus Blackstone saw the right to
bear arms as limited to his people, principally, the loyal Protestant yoemanry.
We can be confident that the
framers of the US Constitution, slave-owners and non slave-owners alike, had
the same view. They certainly did not intend that the right to keep and bear
arms
be guaranteed to each of the millions of black people who were enslaved in
the US at the time.
I respectfully suggest that Blackstone
does not afford satisfactory support for the view that when the Second
Amendment speaks of
“the People” it means “each individual”.
And, it would also not be
entirely flippant to say that, if the proponents of originalism were
consistent, the only arms which the
Second Amendment could be taken to permit
are muskets, knives, swords, pikes and muzzle-loading cannon, not automatic
rifles or pump
action shotguns.
That the words of the Second
Amendment guarantee of the possession of firearms by unregulated individuals
was not, until these very
recent decisions, a view supported by the Court’s
decisions. It was not an article of legal faith even on the part of
conservative
lawyers.
In this regard, in 1989, Robert
Bork, a leading proponent of originalism, acknowledged that the Second
Amendment serves “to guarantee
the right of states to form militias, not for
individuals to bear arms.”
The argument that the Second
Amendment guarantees the right of individuals to bear arms seems to have first come
to prominence, not
in the Court’s own precedents, but as a result of agitation
by the National Rifle Association in response to gun control laws passed
in
reaction to the assassinations of John Kennedy, Martin Luther King and Robert
Kennedy. This campaign led the former Chief Justice
Warren Burger to say in
1991 that the NRA’s campaign on the Second Amendment was “one of the greatest
pieces of fraud, I repeat the
word ‘fraud’, on the American public by special
interest groups that I have ever seen in my lifetime”.
Visions of Nationhood
How then can we understand the
majority judges reading of the text? How did they come to interpret the text
as they did?
The Chief Justice of the United
States, on his visit to Australia in July last year, gave a speech in which he made
the point that
the Bill of Rights was very much the product of historical
circumstances of the founding of the United States. The Chief Justice
was, of
course, a member of the majority in each of the decisions under discussion.
His speech may afford some insight into the
cultural lens through which the majority
viewed the constitutional language. He said:
“America’s first colonists were strong-willed individualists who chose to start a new life
in an unknown land. Most were English
subjects who came from a heritage of
English liberties reaching back to Magna Carta. They brought a conception of
individual
rights with them. For example, the first charter of the colony of
Virginia, written in 1606, provided that colonists and their
descendants ‘shall
have and enjoy all liberties, franchises and immunities as if they had been
abiding and born in this our
realm of England’. The American writer Ralph
Waldo Emerson stated early in our history that Americans began with freedom.
As he put it ‘America was opened after the feudal mischief was spent and so
people made a good start, we began well’.”
Roberts CJ went on to say:
“But we did
not begin content. The American colonists did not arrive on new soil satisfied
with the status quo. Some of
America’s first colonists, like the Pilgrims, the
Puritans and the Quakers, came to America seeking broader religious liberty.
Others sought the opportunity to own land, to escape a rigid class structure,
or to seek out in an undefined way a life better
than the one they had left.
They came, in the candid words that would appear in the Declaration of
Independence, ‘to pursue
happiness’. Their notions of liberty thus arose not
only from their English background, but also from widely shared personal
aspiration. Those notions took root and flourished without formal efforts at
cultivation in the untamed new world environment.
…
The American
colonists began to consider the theoretical basis for their rights, and they
naturally gravitated toward John
Locke’s theory of social compact. That theory
rested on a political perspective that was very easy for the New World
colonists
to visualise. People existed before governments and people in the
state of nature entered the world with god-given natural rights
that they may
curtail or surrender to government only by free consent. …
We may note
that the Chief Justice refers to ‘people’, not to ‘The People’. He speaks of
people being born with natural rights
rather than with companions.”
Chief Justice
Roberts went on:
“The King of
England did not share that perspective. But for the generations that were born
in America, the monarch must
have seemed distant and his divine rights and
abstraction far removed from their experience. The land that the colonists had
entered was far closer to Locke’s state of nature than the one they had fled.
By the mid 18th Century a succession of generations had tamed wild
lands and constructed farms, villages and town halls with their own hands.
Those Americans had no difficulty embracing the notion that people also created
government and that government existed only
by virtue of a compact expressing
the consent of the governed.”
The Chief Justice’s speech
affords a compelling statement of the individualist vision of the gestation of
the US Constitution. But like all visionary statements, the resonance of the
statement depends on the time, circumstances and experience of the audience.
The
notion of “the People” does not figure prominently in this vision, that is the
People as a civilized community which organizes
militias and wages war, not
with sticks and stones, but with sophisticated weapons which can only be produced
by civilization and
the organized division of labour which civilisation
supports.
For many Americans, it may be
that the vision of a man and his musket carving his own happiness out of the
state of nature where opposition,
natural or human, is something to be overcome
is a compelling vision of the individualist foundations of the United States:
it is,
after all, a vision that inspired two generations of Wild West movies.
But many modern Americans may be disappointed to known that
they are governed
under the Constitution according to “The Man Who Shot Liberty Valance.”
Many city dwellers of the 21st
Century, imbued with the bourgeois values of non-violence, civic mindedness and
peaceful co-operation, may not be persuaded or inspired
by that vision. They
may see this vision as part of the notional myth, of some value to sure, but not
an indispensible part of the
Founders’ legacy by which their existential
choices should be curtailed.
Something of this perspective was
recently expressed by the satirist Jon Stewart who commented that North America was “settled remarkably
quickly thanks to the extermination of one race, the
enslavement of a second, and the can-do attitude of a third”.
Many modern Americans may query
whether this reading of the Constitutional text by the light of the claims of
the 17th Century for the individual in the state of nature reflects
the state of nature conceived by Locke, who shared, or perhaps more correctly,
inspired, Blackstone’s postulate of a “polite and commercial people” which, in
America, joined together to make their own political
arrangements, or that much
bleaker state of nature conceived by Thomas Hobbes: the war of all against all
where life is “solitary,
poor, nasty, brutish and short”.
I am not suggesting that the sceptics
would be right, or even that those who hold these views are in the majority of
American citizens.
It is simply that it is a remarkable state of affairs that
their views don’t matter even if they do happen to be in the majority;
and it
is a state of affairs that the Constitutional text does not demand.
Conclusion
Arnold Toynbee discussed the
differences in the scope for interpretation between a sacred text and a sacred tradition
guarded by a
priesthood. He said:
“An authoritarian scripture suffers…from a weakness from
which an authoritarian (priesthood) is exempt. The possibility
of
re-interpreting a written text to meet a changeless human nature’s
every-changing situation is more narrowly circumscribed than
the possibility of
a re-interpreting the unwritten lore of a hierarchy or a body of doctors or
fathers claiming to be inspired by
a Holy Spirit, which, like the wind, ‘bloweth
where it listeth”.
The Supreme Court’s decisions illustrate
that, even with a sacred text, Toynbee was correct only insofar as the ethos of
the guardian
priesthood is effective to constrain it to recognize that it is
less powerful than the sacred text. Otherwise, subjective and contentious
reinterpretations
may develop a life of their own drifting free of the sacred text.
And because those reinterpretations have the
force of the Constitution, the
possibility of a different outcome is foreclosed to the People.
If we accept that, as Jefferson
thought, a Constitution exists to serve each living generation, these cases afford
a salutary reminder to those who regard the United States with deep and
abiding
affection and their scholars and judges with admiration, of the need to accord
pre-eminence to the constitutional text, and
of the need for respect for the
precedents which have settled its interpretation.
In the absence of relevant
precedents it is important to have a modest appreciation of the value of one’s
own historical insights
about the intent of the Founders. That modesty must
include a willingness to resist the exhilarating belief that one is the first
to reveal a great truth. And it should be not less than that exhibited by the Founders
themselves.
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