Original Intent, Supreme Court Elections, and the 2nd Amendment

by Phil Anderson

Wisconsin has a Supreme Court election on April 2nd. If you have been following this race, or paying attention to any of the U.S Supreme Court nomination hearings, you have heard a lot of noise about judicial philosophy and “original intent.” What does this mean? Is it important?
Original intent is the idea that the Constitution and other laws must be interpreted based on the original intent or meaning of the authors. This view sees the Constitution is a static document frozen in time. It can only be changed by the formal amendment process. This is in contrast to a “living constitution” in which meanings and application of law evolve over time. When judges apply old laws to new situations justice may require interpretations that are different from the original understanding of the law because we don’t live in the same world anymore.  

“Originalism” is a core dogma of current conservatives because it serves their political agenda. They claim to be  the righteous adherents to original constitutional principles while the liberals are “legislating from the bench.” This philosophy may sound reasonable but is merely a legalistic cover for ruling against social legislation, business regulations, equal rights, and similar laws they oppose for political reasons. We know this because there are many examples of conservatives becoming “activist judges” when needed to advance their cause. It also has become a mainstay of misleading campaign soundbites to attack opponents.

Such is the case with Judge Brian Hagedorn running for the Wisconsin Supreme Court against Judge Lisa Neubauer. Hagedorn says he will enforce laws based on “what the law is” and not what “the law should be.” He is true believer in original intent. This is the major thrust of his campaign and the basis for his painting Judge Neubauer as a liberal who will insert her political views into the law.  

Voters should reject this false argument. In real life judges do look at the legislative or original intent in deciding cases. They look at prior cases for precedents. But they also look at the spirit of the law and apply laws to changing societal norms, technologies, and circumstances of the specific case. Being tied to a dogmatic principle of law does not make one more impartial or a better judge. In fact the better judge would seek justice for the specific case rather than loyalty to some legalistic dogma. 

In his recent book American Dialogue: The Founders and Us, Joseph J. Ellis talks about original intent and the Constitution. Professor Ellis is a leading expert on the founding fathers,  their writings, and personal correspondence. He says the founding fathers were not paragons of eternal wisdom. They were humans with conflicting interests, motivations and opinions. Creating the Constitution was a messy process with much disagreement, bitter regional differences, and tough compromises. The final product contains flaws (especially its protection of slavery that led to the Civil War). So original intent is not always clear. Too often it depends on what you want to cherry pick from history. He concludes “originalism” is a fiction based on the false idea that there is a “single source of constitutional truth back there at the founding” that can easily be discovered by any judge.   

Professor Ellis also exposes the hypocrisy of the advocates for original intent, especially Antonin Scalia, the late U.S Supreme Court justice. In rulings on women’s rights, corporate person hood, campaign contributions, and gun control, Scalia was an “activist judge” and “legislated from the bench” extensively. Ellis sites the example of District of Columbia vs Heller in 2008 which established an individual right to bear arms independent from service in the militia. This totally new interpretation overturned a century of judicial precedent and  ignored the actual text and the historic context of the 2nd amendment. 

The real concern of the founding fathers in 1789 was who would control the use of military force. There was a great fear of a standing federal army. The colonies all had local militias. Most white males were required to participate and to provide their own firearm. So the ownership of guns was important to a “well regulated militia” and thus written into the 2nd amendment. Based on the writings of James Madison (the author of the Bill of Rights) and the debates at the time, Ellis says the 2nd amendment was not about owning a gun. It was about whether the defense of the republic should be in the hands of state militias or a federal army. So the Heller decision was wrong as well as being contrary to any original intent. 

You don’t have to be a Constitutional scholar to know that the founding fathers were white males of property and mostly rich. They intended for slavery to continue, women to have no rights, and working people to be prevented from having political power. All this was written into the Constitution. Since then, through constitutional amendments, progressive legislation and judicial rulings, we have come a long way toward a more democratic society. Voters need to remember these facts. If we want social progress in the 21st century we have to elect representatives and judges who will move us forward. We should not be tied to a fictional version of the 18th century. 

“IF YOU ARE NOT OUTRAGED YOU ARE NOT PAYING ATTENTION” Action Alert #4

Stopping Trump’s assumption of emergency powers will require massive citizen action. Without public pressure the legal options may prove inadequate. The House has acted to overturn the declaration. It appears the Senate (because of public pressure) may follow suit. But Trump can veto these actions. Overriding a veto will be very difficult and will only happen with extraordinary public pressure.

Lawsuits have also been filed to end the declaration. But these may take years to resolve and the outcome is not assured. Most federal judges have been appointed by Republican presidents. Historically the courts, especially the U.S. Supreme Court, have been very conservative. We can’t rely on the courts to prevent abuse of power by Trump.

Trump thinks being president is like running his companies. He is in charge. His words and actions indicate his disdain for limits on his power, co-equal branches of government, and normal democratic process. This is an extraordinary danger. As the Atlantic magazine said, “Trump’s evident hostility to key elements of liberal democracy cannot be dismissed as mere bluster.” 

We can not allow this issue to die as last week’s news. We have to stay active!