The nomination of Brett Kavanaugh has spurred me to greater thought about the Supreme Court and the reasoning process of its judges. Although I am not a lawyer, I have studied and taught Constitutional Law. I suppose that I am knowledgeable, but not an expert. In a recent column, Michael Gerson advocated a “serious discussion of constitutional interpretation.” This is my attempt to contribute to such a discussion.
Gerson and most other serious observers of our court system recognize that conservatives generally consider themselves to be “originalists” when interpreting the Constitution. This is certainly true of Judge Kavanaugh, Justice Gorsuch, and the late Justice Scalia. Oversimplified, this approach simply means that the intent of the framers or original authors should, by and large, be controlling in applying constitutional provisions. Gerson points out that this is harder than it sounds. First of all, there were multiple framers of the Constitution, the Bill of Rights, and subsequent amendments. Even if we limit our consideration to those activists in 1789, there is evidence of serious disagreement. Consider the two primary authors of The Federalist Papers, James Madison and Alexander Hamilton. There is abundant evidence that these “framers” and defenders of the Constitution interpreted that document quite differently. These differences led to their participation and leadership in the two major political forces of the time, the Federalists and the Anti-Federalists. Also, most of us would recognize John Adams and Thomas Jefferson as being among the founders. Their disagreements were both fundamental and fierce.
What this means is that conservative judges are able to “cherry-pick” the historical evidence in support of their position just as liberal judges are able to be creative in their reasoning. An excellent example of the problem can be seen in the various opinions offered in the gun control case of District of Columbia et al. v. Heller. The basic impact of the majority decision is to sever the connection between the Second Amendment and militia service. Justice Scalia’s lengthy majority opinion goes to great lengths to achieve that purpose, and Justice Stevens’ dissent uses a different historical interpretation to assert the connection.
Justice Scalia explains the phrase asserting the need for a “well-ordered militia” as declaring a purpose for the amendment without affecting the application of its guarantee of the right to bear arms. The discussion is quite scholarly, but I have great difficulty believing that James Madison, the author of the amendment, went through this reasoning process when he drafted it. As Justice Stevens pointed out in his dissent, Madison included language in his presentation to Congress that would have exempted conscientious objectors from militia service. Scalia’s response was to say that this language wasn’t included in amendment, so we cannot considered it in determined “framer’s intent.” What we have then, is a claim that we cannot consider language in the amendment as binding for linguistic reasons and that we cannot consider part of a written argument by the author of the amendment because those words were not included in the text.
The majority’s contention in Heller that fear of standing army was a motivating factor in the crafting and adoption of the amendment is quite correct. The problem was that the Federalist founders, particularly Hamilton, felt that a standing military and naval presence was necessary to protect both the existence of the new nation and its commercial activity. The Anti-Federalist founders feared standing armies as instruments of oppression and insisted upon using a militia for this purpose. It is quite possible to logically contend that this very argument strengthens the connection between the preparatory and operative clauses of the amendment. Furthermore, the events of the 19th, 20th, and 21st centuries and our subsequent dependence upon standing military forces give support to Justice Steven’s later argument that the Second Amendment should be abolished entirely. Furthermore, it is entirely possible that Justice Scalia’s lengthy discourse on the right of citizens to rise up in arms against oppressive regimes could be taken by many as a justification for the many militia movements scattered about our country today. At least, that is how most of them justify themselves.
Note that the argument above is based entirely on an “originalist” approach to interpretation. That is why it illustrates Gerson’s point so well. Indeed, it is not until later in the opinion that the more current cause of the day, regulation, is considered. The Court appears to unanimously agree that regulation of firearms is permitted under the Second Amendment. The majority simply held that the District of Columbia went too far.
There is precedent to suggest that the amendment was intended to preserve the right to own weapons “in common use.” [See the text of D.C. v. Heller for extensive citations.]
On this basis we cannot question the laws that ban ownership of fully automatic weapons, grenade launchers, and anti-tank weapons. The question remains, “What can be banned?” Herein lies the difficult. The framers don’t help us at all. Common sense might help. As I argued in an earlier essay, and Judge Kavanaugh argued more eloquently in his dissent in D.C. v. Heller at the appellate level, the use of the term “semi-automatic weapons” in such bans is silly and clearly violates the “common use” criterion as applied today. The characteristics of the so-called “assault weapons” that make them dangerous to society are the ability to direct a large volume of fire at a target and the ability of the ammunition used to inflict great damage to the target. It is those same characteristics that make them useful for military purposes and dangerous for civilian purposes. Furthermore, the practical difference between a fully automatic weapon and a semiautomatic weapon with a 30-round (or even a 15-round) magazine may be trivial if you are on the receiving end. (My recollection of the Browning Automatic Rifle with its slow cyclic rate of fire is that I could pull the trigger that fast on an AR15, and most AR15s have larger magazines.) The basic point is that reasonable regulation is possible under Heller and that local, state, and federal governments should put aside the more extreme views of the NRA and enact some controls with respect weapon ownership. In addition to considering magazine size and ammunition characteristics, they might want to expand examination of mental and criminal background when permitting sales and possession. I doubt that James Madison would have approved of having a musket in the hands of a homicidal maniac.
There is a final aspect of “originalism” that is worthy of consideration. It is one thing to base one’s announced criteria for constitutional interpretation on the framers’ intent, but quite another when it comes to applying those criteria. One runs the danger of discovering conflict with other deeply held values whether moral or practical. The media have widely reported that Judge Kavanagh is both an “originalist” and a defender of executive power. My wife, Dorothy, picked up on this immediately. She pointed out that one of the driving motivations for the framers of the Constitution was fear of executive power in the form of kings, queens, and emperors.
To be sure, one can find advocates of a broad interpretation of executive powers in the Constitution in such Federalists as John Adams and Alexander Hamilton. It would be interesting to hold Judge Kavanagh’s definition up against that of Adams and Hamilton. I suspect that the passage of time between the 18th and 21st centuries might cause significant differences. There has also been considerable criticism of the last Administration and its claim to “excessive” executive power. Perhaps some eager legal scholar will comb through the Judge’s opinions and find language which might be applied to actions of President Obama. Is it at all possible that years of service in the Executive Branch and the White House itself has colored his view of the political world? I find myself wondering what the framers and adopters of Article Two of the Constitution would make of our current President. I think back on the virulence of Thomas Jefferson’s criticism of John Adams. It almost makes me an “originalist.”