September 1, 2026
I’ve been reading about “constitutional interpretation” and I am appalled at the current thinking about this matter, because one school of thought teems with inconsistencies.
First, some background. From the 1950s through the 1970s, the Supreme Court began interpreting the Constitution in light of current conditions. It interpreted the Constitution in the view of modern times and meanings. The basic concept was pretty clear: 20th century America was a very different place than 18th century America, and it was necessary to view the Constitution with modern eyes. This concept came to be called the “living Constitution” school of thought. This resulted in a series of landmark decisions that radically changed American law.
In Brown v Board of Education (1954), the Court ended segregation in schools, and later decisions chopped away at racist laws. In Miranda (1966), the Court held that police must inform detainees of their constitutional rights before interrogating them. In Griswold v Connecticut (1965), the Court established the fundamental principle of privacy as a Constitutional right. This is turn led to Roe v Wade (1973), which established a constitutional right to abortion.
These decisions outraged conservatives, who maintained that the Court was being “activist” by going beyond the strict text of the Constitution. They developed a theory called “originalism”, which posited that the Constitution must be interpreted strictly in terms of the original meaning of its text. The theory has since evolved into several flavors. Some scholars emphasize the original intentions of the authors of the Constitution. The problem with this is that the original intentions of the authors of the Constitution are difficult to establish. Worse, there was widespread disagreement among the authors on many of the fine points of the Constitution. Another school of thought held that the Constitution should be interpreted by the “original public meaning” of the text of the Constitution: its meaning as generally understood by the public at that time.
The gist of these schools of thought was to reject the “living Constitution” theory and hew to what the Constitution actually meant when it was written. Now, I can understand the rationale behind this thinking. It really does seem dangerous to allow the courts to revise the Constitution in light of their interpretation of how times have changed. On the other hand, it is undeniable that times have changed quite a lot. Here are some examples:
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
This clearly establishes freedom of speech and of the press. It does NOT protect freedom of expression — only freedom of speech and of the press. Any originalist interpretation of the First Amendment must conclude that it does not cover radio, television, or the Internet. You are free to stand on a street corner and engage in public speaking. But if a reporter records your speech and shows it on television, the government has every right to throw the reporter in jail. Now, it is plausible to hold that a recording of speech is indistinguishable from the speech itself, so the First Amendment does indeed cover modern technologies. But that is NOT what the Constitution says, and that is most certainly NOT what its authors intended. There is no way that they could have anticipated these modern inventions; there was absolutely nothing in their experience or their history that suggested that any other form of communication would ever exist. Remember, this was at the outset of the Industrial Revolution, and the notion of progress was still poorly developed. The Constitution does acknowledge technological progress in Article I, Section 8, Clause 8:
[The Congress shall have power…] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors…
However, in those times, the notion of progress was confined to machines for industry and agriculture. I have read a great deal of the writings about science and technology through history and the speculation that someday technology might affect communications never appears until about the early nineteenth century, and was not actually invented until 1837, and the first telegraph transmission took place in 1844. It was invented in America by Samuel Morse, who was born after the Constitution was ratified. Therefore, it beggars belief to suggest that the authors of the Constitution meant anything by “the press” other than the printing press. Accordingly, the First Amendment, in any originalist intepretation, does not cover radio, television, or the Internet. Only the “living Constitution” interpretation permits freedom for radio, television, and the Internet.
The Second Amendment
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
“Arms” in the originalist interpretation, includes muskets, single-shot pistols, and smoothbore cannons shooting cannonballs of weight not exceeding 32 pounds. These firearms used conventional “black powder” gunpowder, not the high-powered explosives in modern firearms, and because they were smoothbore weapons, their accuracy was poor. The term “arms” also included swords, knives, bayonets, and other edged weapons. I’m willing to grant rifling in the original meaning of the Second Amendment, because it had already been invented, but was too expensive for general use.
Could the authors of the Second Amendment or the general public have understood the term “arms” to include any kind of weapon that might be invented in the future? I very much doubt it; again, the notion of progress was still weak in those times. For example, the arms that George Washington knew as a child were no different from the arms in use when he died. People used the same arms in 1790 that they had used in 1740. It is preposterous to assume that they anticipated rapid fire weapons accurate to hundreds of yards with multi-round magazines when the Second Amendment was written.
Thus, the originalist interpretation of the Second Amendment would permit only the arms available at the end of the 18th century. Sorry, gun enthusiasts. Only the “living Constitution” interpretation allows you to have your favorite guns.
The Seventh Amendment
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”
Twenty bucks. That’s what the Constitution says. If you break my lawn sprinkler, then I can sue you for damages and demand a full jury trial. That’s what the originalist intepretation requires.
However!
If we really want to honor the intent of the authors of the Constitution, we should employ Article V of the Constitution, which specifies the procedure for making amendments to the Constitution. Sad to say, the amendment process is no longer politically viable. Any proposed amendment must be ratified by three-quarters of the states, and impossibly high bar. We couldn’t even pass the Equal Rights Amendment. Here is its text:
"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
"Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
"Section 3. This amendment shall take effect two years after the date of ratification.”
I cannot imagine any reasonable person opposing this amendment, and yet the United States of America have been unable to ratify it. Other issues that the Supreme Court has had to deal with, such as abortion and gun right, would best be resolved by an amendment laying out a compromise. But Americans don’t compromise any more. Everything must be a fight to the death. Thus, die we shall.
Conclusion
The current Supreme Court has been dragging us back to the 1790s with it expansive originalist interpretations of the Constitution. The idiocty of this legal school of thought is patent to any rational observer, yet conservative resentment of the “living Constitution” rulings overrules rational analysis.