15-51 Segment 2: Interpreting the Constitution: How do we know what the framers intended?

Synopsis: When Congress debates a constitutional point, or when the Supreme Court is considering a case brought before it, we often hear the question, “what did the framers intend?” How does anyone really know what people, who debated issues more than 200 years ago, really intended? We talk to two constitutional specialists about the issue, and hear how some Supreme Court justices approached an issue that is once again in the news.

Host: Marty Peterson. Guests: Jeffrey M. Shaman, Vincent DePaul Professor of Law, DePaul University College of Law, Chicago, IL; Ray Raphael, Sr. Research Fellow, Humboldt State University, Arcata, CA, author of Constitutional Myths: What we get wrong and how to get it right.

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Interpreting the Constitution

Marty Peterson: The issue of gun control is a contentious one in Congress and across the nation. The Second Amendment to the U.S. constitution provides for gun ownership, but what are the limits? How do we know what the framers of that document meant when they wrote the Amendment? Or for that matter, when they wrote the entire constitution? To find out, we spoke with two constitution specialists about the document and the problems in determining what the authors intended. First, we asked Jeffrey M. Shaman, the Vincent DePaul Professor of Law at DePaul University College of Law in Chicago, what a constitution is…

Jeffrey Shaman: As a legal matter a constitution is the fundamental law of the land or the supreme law of the land. It establishes the government or constitutes the government –hence the name constitution – it sets for the powers and limitations of the government and in a bill of rights the constitution sets forth the fundamental rights the individual citizens enjoy.

Peterson: The Constitution was written more than 200 years ago, and times have changed. Yet, when a constitutional question comes before Congress or the courts, we often hear debaters claim that the framers meant this or that. How do we know what they meant all those many years ago?

Shaman: We don’t really know. There certainly is some evidence that the founders left concerning the Constitution. There were debates among the founders at the Constitutional Convention, the Federalist Papers represent some of the thoughts of various founders, and there are writings at the time and laws that existed at the time that shed some light on what the founders may or may not have thought. But for the vast majority of constitutional issues there is no definitive answer as to what the founders thought, and to a certain extent it’s a myth to think that we can determine the meaning of the Constitution by looking to the intent of the founders.

Peterson: We can look back at history for some guidance, but we have to be careful…

Ray Raphael: Language changes. When they used the words domestic violence and talked about domestic violence they were not talking about spousal abuse. They were talking about local insurrections.

Peterson: Ray Raphael is a senior research fellow at Humboldt State University in Northern California, and author of Constitutional Myths: What we get wrong and how to get it right

Raphael: So what they meant has to be viewed within the context of those times. Now, let’s take an example. They said that, in the 8th Amendment said that no cruel or unusual punishment should be administered. Now at that time what they meant by cruel and unusual punishment was something different than we do. They meant like drawing and quartering, and those sort of mutilations. Hanging was certainly permitted and so was branding of the hands and lashing for petty crime. So we can’t stick that closely to these things that are said over two centuries ago in very different circumstances. We have to look at them in terms of how the general principles can be applied in terms of our times.

Peterson: Shaman says that another example of the evolution of our constitution is in the area of women’s rights under the 14th Amendment…

Shaman: The underlying principle of the Equal Protection Clause is that there shall not be an unjust discrimination; there shall not be invidious discrimination. At first that was thought only to apply to invidious racial discrimination, but over time the court has recognized that the Equal Protection Clause prohibits other forms of unjust discrimination and foremost among those is probably gender discrimination.

Peterson: What about the right to bear arms? Raphael says that the underlying principle of the Second Amendment seems to have vanished from the current debate…

Raphael: They were discussing the place of the militia in society at that time. They were very worried about standing armies and the wanted to make sure that a well-regulated militia would continue to exist so they established the Second Amendment so it would. Now this does not address individual gun ownership, that was not their issue. It wasn’t an issue because nobody questioned it. Of course people could own guns, that is to say, guns that would fire a single shot and needed to be reloaded and so on. Those were their guns and they said it was perfectly fine. Also, of course they could be regulated for purposes of public safety. There were already regulations in effect in all local communities. They had fire regulations that only a certain amount of powder could be stored within houses because it was a public safety issue, and the rest would have to be put in magazines.

Peterson: Shaman says that until fairly recently, the courts understood that the Second Amendment protected the right to bear arms in connection with being a member of a militia. Then a case came along that changed everything.

Shaman: Then in 2008 the Supreme Court decided the Heller case overruling those decisions. Taking the position for the first time that there was a right to bear arms unconnected with service in a militia. That was a very controversial decision and one that took an originalist approach to the Constitution. Justice Scalia wrote the Court’s majority opinion taking the position that the original meaning of the Second Amendment was that there was a right to bear arms unconnected with service to a militia.

Peterson: It wasn’t a position that Justice Scalia took on a whim – far from it. Shaman says the justice undertook a voluminous study of historical and judicial documents….

Shaman: He surveyed 17th century English history, 18th century American dictionaries, Blackstone’s Commentaries, the journals of the Continental Congress, the Federalist Papers, the Anti-Federalist Papers, and a number of political essays and treatises at the time concerning the right to bear arms. An after reading all those, he came to the conclusion that the original meaning of the Second Amendment was to protect the right to bear arms even when not in service to a militia.

Peterson: Shaman adds that despite Justice Scalia’s stand on the individual’s right to bear arms, he did admit that the government does have the authority to pass reasonable regulations concerning that right. We’re bound by the Supreme Court’s decisions, but Shaman and Raphael say you’d be hard-pressed to find anywhere in the Constitution that gives them that authority…

Shaman: It doesn’t say that anywhere in the Constitution. Article III creates the Supreme Court, mandates that there shall be a Supreme Court and states that the Supreme Court shall have the judicial power, but it really doesn’t define what is meant by the judicial power. So this is another example of something we talked about before, and that’s the general and subjective nature of some of the provisions in the Constitution. In 1803, in the famous case of Marbury v. Madison, the Supreme Court ruled that it does, in fact, have the power of judicial review. It does have the “last say” on the meaning of the Constitution, and we’ve adhered to that position ever since.

Raphael: It’s been kind of a gradual custom starting with the Dred Scott Decision and then onwards where the Supreme Court, people increasingly began to accept that the Supreme Court had that authority, but it’s not constitutionally stated. That is a cultural tradition that we have developed. The problem when interpreting the Constitution as a very rigid document is that it is the oldest constitution living of any nation, and there’s been more time elapsed and it has, in fact, evolved. So we have to look at the evolution of that Constitution as, in a sense, being the Constitution.

Peterson: Raphael says that it’s a good thing that we have a constitution that evolves rather than a document that’s carved in granite…

Raphael: If you have a constitution and you try to interpret it according to exactly what those people at those times who wrote this thing, how they meant it to be applied, you’d wind up in some very strange places. Today, you would say it’s perfectly legal and constitutional for a local sheriff to brand the hands of somebody and lash him for petty shoplifting. That was fine in their time, and so it should be fine in our time. If you think it’s that strict, then it’s going to break. But our Constitution is wonderful because it bends rather than breaks. It starts with a rigid anchor. You’re anchored right there in the text. But history kind of drags that anchor slowly along the bottom of the ocean to adjust to the values as society evolves. Every once in awhile it picks the anchor up actually replaces it a little farther along with an amendment. But it has to move somehow, because if it doesn’t bend it’s going to break.

Peterson: You can read more on Ray Raphael’s thoughts about our rights and protections in his book, Constitutional Myths available at bookstores and online. He also invites you to visit his website at RayRaphael.com. To learn more about Professor Jeffrey Shaman’s work and the DePaul University College of Law, you can log onto their site at law.depaul.edu. For information about all of our guests, log onto our site at Viewpointsonline.net. You can find archives of past programs there and on iTunes and Stitcher. Our show is written and produced by Pat Reuter. Our production directors are Sean Waldron and Reed Pence. I’m Marty Peterson.