Reflections on a Fraud Supreme:
Exposing the Absurdity of Judicial Conservatism
June 27, 2008
To paraphrase and slightly change an old saying: "It's better to be thought a liar than to open one's mouth and remove all doubt." It's a maxim that Supreme Court Justice Antonin Scalia should probably have heeded, given his majority opinion in the court's decision this week, tossing out Washington D.C.'s ban on handguns. For therein, Scalia and the four justices who joined him, who claim to adhere to a "strict constructionist" view of the court's role—meaning they are guided by the intent of the framers of the Constitution, rather than modern-day sensibilities—exposed this "jurisprudence of original intent" as either an outright fraud, or at the very least an unworkable legal standard, the practical absurdity of which they are surely smart enough to recognize.
The fact is (and the gun decision demonstrates it conclusively), there is simply no way to rationally decide Constitutional matters with an eye toward the intent of the framers, even were it a good idea to try. For in both the majority and dissenting opinions, the nine justices appealed to the sensibilities of the framers and the times in which they found themselves. In so doing they show us that discerning the intent of such persons is an impossible enterprise, if for no other reason than the fact that the framers themselves didn't always agree. If both Scalia and Justice Stevens, who wrote for the losing side, can appeal to the founders and their contemporaries in support of their own view, then the jurisprudence of original intent becomes little more than a philosophical straightjacket, incapable of illuminating what our modern-day Constitutional understandings should be.
So consider the decision from this week, wherein Scalia and the majority ruled that the Second Amendment guarantee of a "right to bear arms" applies to personal possession of a weapon in the home for self-defense. This position, which had never been articulated by the Court previously (and which indeed had long been rejected by controlling precedent), relied upon Scalia's interpretation of the framer's intent. To wit, his claim that the militia reference in the Second Amendment—and which, according to gun control advocates, restricts the right to bear arms by making it contingent upon service in some law enforcement or military body—does not limit the individual right to own and keep a gun. Scalia insists that although the Framers prefaced the individual right to bear arms with the clause about the militia, that preface should not be seen as invalidating the "operative" clause regarding personal gun possession. The preface, according to Scalia, was merely placed there "to announce the purpose for which the right was codified: to prevent elimination of the militia."
But with these words Scalia seems to capsize the ship of strict constructionism and show himself a liar as to his own adherence to such lofty principle. For if it is acknowledged that the purpose for which the right to bear arms was codified was to prevent the elimination of the militia, then it must also be acknowledged that this was the intent of the framers. Purpose and intent, after all, are synonyms, in every thesaurus to be found on the planet, including, I'm guessing, the one that Scalia or at least one of his clerks must have lying around somewhere.
After admitting that the purpose or intent of the Second Amendment's framers was to safeguard the militia, Scalia goes on to propound a personal right to bear arms by citing as if it were an authoritative source, a legal dictionary from the 1770s, which defined arms in a way as to include personal possession for self-defense. But the definition of "arms" is not the issue. The issue—to hear strict constructionists tell it—is merely this: what did the framers mean when they put forward the right to bear such? And he's already told us that their purpose was for the protection of the militia and its members. To the extent the existence of a militia is hardly threatened in the modern era--we have a large standing military and national guard units in every state--the intent of the framers is safeguarded without resort to personal gun ownership. The purpose for which they foresaw a need to protect gun ownership as a right has been rendered obsolete, in other words, by the trajectory of history. Unless Scalia can show (and he cannot, nor does he even make the attempt) that somehow guns for collective and military self-defense are in danger of being confiscated, the intent of the framers is (or should be seen as) legally moot.
But frankly, it is Stevens rather than Scalia who makes the most persuasive appeal to the intent of the founders, when he notes that at the time of the Second Amendment's passage, although the framers could have spelled out an individual right to bear arms, untethered to a militia clause—as did Pennsylvania and Vermont, individually, for instance—they chose not to do so. To the extent they were surely familiar with such protections as existed in those places and which explicitly mentioned the right to bear arms for hunting and personal self-defense, and yet chose not to include such language in the Constitution, suggests that it was not their intent to safeguard gun possession in such a broad manner as suggested by the Court this week.
Of course it is possible that some of the framers would have supported the position taken by Scalia. Perhaps even most of them would have. But if so, this only demonstrates the inherent absurdity of strict constructionism, because there is other evidence, including that cited by Stevens, to suggest a different perspective on the part of at least some, if not most of the others. It is this imprecision and the contradictory intents of the framers that has always made strict constructionism a form of junk jurisprudence.
The framers, after all, couldn't agree on lots of things in Philadelphia during those long days in 1787. Even more fundamentally: Who qualifies as a framer to whom we should then look so as to divine their intent? All the delegates at the convention, or merely those who took a lead role in drafting the final text? Only the convention attendees, or also those responsible for ratification in the states, whose intent may well have differed considerably from those who drafted the document?
This kind of ambiguity is probably one of the reasons that the framers themselves seem to have rejected the notion that their intentions should forever guide future jurists. So consider the position staked out by Madison and Hamilton in the Federalist Papers (numbers 37 and 83 respectively), to the effect that Constitutional interpretation should be based at all times on "common sense" and the interplay of "particular discussions and adjudications," rather than on the fixed interpretations of statesmen long dead.
In the end, whether or not gun control measures are good public policy is a separate issue, and one that I will leave to others to debate. Honest and decent people can and do disagree on the matter. But regardless of how one comes down on that issue—and even on this Supreme Court decision that has found an individual right to gun ownership—let us at least acknowledge that the cornerstone of conservative judicial theory is itself a fraud, a con, a cover for making law in a way that suits the reactionary sentiments of those who adhere to it. It is no less subjective than liberal or left-leaning jurisprudence. To the extent we can now see through the claims of high-minded judicial restraint to which the right regularly appeals—all the while claiming that they seek merely to interpret the law, rather than foist their particular conception of the good on others—perhaps we can finally move on to the more important debate: namely, whose interpretation of the good is going to prevail? For that, in the end, is what the Court is charged with deciding.
So too, the American public.