My colleague Martin Longman has an elegant and persuasive essay at Ten Miles Square today that’s one of the better rejoinders I’ve ever read to the secular religion of constitutional originalism. He notes that by using relative terms like “unusual” and “unreasonable” in the Bill of Rights, the Founders assumed changing circumstances would change the interpretation of even the most highly valued constitutional ideas. And to assume otherwise is just ridiculous:
What would James Madison think was a reasonable search in this day and age? What would he make of a microprocessor in a telephone? What would Thomas Jefferson think about women voting? What would Samuel Chase or Benjamin Rush think about the abolition of slavery? Would John Jay agree that people have an inherent right to privacy that extends beyond searches of their persons and properties? What would Benjamin Franklin make of the pill and IUD’s?
The modern world would blow all of their minds and they would probably struggle to make sense of it. Computers, airplanes, satellites, space travel, modern hospitals, cars, nuclear weapons.
My point is that you can’t decide what is unusual and unreasonable based on what the Founding Fathers thought to be so. The death penalty used to be used in every country, now only a few rogue nations and the USA still subscribe to this barbarism. It’s certainly unusual if you think globally.
Likewise, in a day and age where airplanes can be converted into missiles and suitcases can contain radioactive bombs, what constitutes a reasonable search is different from when we rode horses and fired muskets.
There’s merit in trying to ascertain what the Founders intended the Constitution to mean, but that doesn’t mean that our understanding has to be the same. George Washington wanted a well-regulated militia but he couldn’t imagine a teenager gunning down two classrooms of first graders in less than five minutes. I think if Washington took a guided tour of the Pentagon and the Situation Room, his concern about having a well-regulated militia would go out the door. If he saw what happens on a regular basis in our schools, malls, and workplaces with gun violence, I think he’d be appalled. In his day mass shootings weren’t just unusual, they were impossible. I don’t think he’d believe that the NRA was being reasonable at all.
In the end, the Founders gave us a constitutional system designed to be open to revision by multiple means. Selectively enshrining their thoughts in order to resist economic or cultural change is alien to the whole spirit of their enterprise, and a wild misunderstanding of their wisdom, which actually lay in their understanding of its limits.