One of the lines of division between the two political tribes is how the Constitution should be interpreted. One school of thought is the living tree doctrine, under which interpretations can evolve along with society to deal with new circumstances that are different, or did not exist when the Constitution was framed. (Canada explicitly follows this doctrine.) The other is original intent—the theory of interpretation by which judges attempt to ascertain the meaning of the Constitution by determining how it was understood at the time it was drafted and ratified.
Both theories of interpretation begin with the text of the Constitution, and this is as it should be, because the Constitution is the basic text of the American experiment of self-governance. The Constitution is also a wholesale rejection of the old order of 18th century European theories of governing. Divine right of kings? Rule by some self-appointed aristocracy? Pshaw. The revolutionary essence of the American experiment is that governments should govern with the consent of the governed. The United States is the oldest, and by far the greatest, constitutional democracy in the world. All Americans are justly proud of this stunning achievement.
Back to the nuts and bolts Constitutional interpretation. The living tree doctrine keeps a foot in the past, but it is decidedly forward-looking. It recognizes that time marches on, circumstances change, and the currents of history will ebb and flow forever. Things that were unimaginable in 1789 when the Constitution was ratified are now part of everyday life. In 1789 the United States was a narrow strip of land along the east coast from Maine to Georgia, with a population of some 4 million. Today the nation spans a continent with a population of about 330 million.
Original intent requires a different analysis. It has two feet frozen in the past, and explicitly looks backward into the minds of a group of landed men who are two centuries dead. I am unsure how men and women of 2020 can travel back in time and place themselves into the minds of the Founders, but this is what original intent analysis requires. Constitutional analysis is frozen in a time when a firearm was a single shot musket, when the fastest means of communication was a man on horseback, and when the western frontier of the nation was the Appalachian Mountains.
One should not rely on time travel to interpret the Constitution of the United States of America. But time travel is required if one chooses to interpret the Constitution based on the notion of original intent, which is a bulwark foundation of the jurisprudence of the Federalist Society and the late Justice Antonin Scalia.
Let us imagine that some combination of time travel and the Vulcan mind-meld were possible, and the members of the Supreme Court could actually meet with the Founding Fathers to seek their counsel on an issue pending before the Supreme Court. Let’s say the issue was whether the First Amendment prevents a State from regulating violent video games. The Court-critters would solemnly bow, heap praise on the assembled sub-committee of the Founders (you just know the Founders would appoint a committee rather than gathering as a whole), and then gravely importune, “Does the State of California have the authority to regulate violent video games, or does the First Amendment prohibit such regulation?”
I suspect the Founders’ sub-committee would ask three questions in response:
First – “What is California?”
Second – “What is a video game?”
And third – “Why on earth are you asking us? We’ve been dead for a long time. Can’t you figure this out for yourselves?”
Let me gently suggest that the Founders, in ratifying the Constitution, did not intend to etch holy writ into stone tablets. Rather, they intended to write a blueprint, an owner’s manual as it were, to guide the American body politic in how to conduct its affairs over the randomness of events and the swirling currents of history. The Founders’ efforts are enduringly noble, and their wisdom is an enduring treasure. But their time has long since passed. It is our republic now, if we can keep it.
Darrell M. Allen is an employment and criminal defense attorney. He lives with two nice Republican ladies north of I-40, where they run two head each of dog and cat.