The people who wrote and ratified the U.S. Constitution didn’t intend by so doing to abolish slavery or abolish the death penalty or give women the right to vote or to an abortion or to legalize same-sex marriage. But they did ban cruel and unusual punishment, and they did ban unreasonable searches. With the Fourteenth Amendment the people demanded equal protection under the law. So, it seems to me that the Founders understood that what was considered unusual and unreasonable in their time might not be considered so in future generations, and the idea that people should be treated equally under the law was firmly established under the conditions of amendment laid down by the Founders.
What would James Madison think was a reasonable search in this day and age? What would he make of a microprocessor in a telephone? What would Thomas Jefferson think about women voting? What would Samuel Chase or Benjamin Rush think about the abolition of slavery? Would John Jay agree that people have an inherent right to privacy that extends beyond searches of their persons and properties? What would Benjamin Franklin make of the pill and IUD’s?
The modern world would blow all of their minds and they would probably struggle to make sense of it. Computers, airplanes, satellites, space travel, modern hospitals, cars, nuclear weapons.
My point is that you can’t decide what is unusual and unreasonable based on what the Founding Fathers thought to be so. The death penalty used to be used in every country, now only a few rogue nations and the USA still subscribe to this barbarism. It’s certainly unusual if you think globally.
Likewise, in a day and age where airplanes can be converted into missiles and suitcases can contain radioactive bombs, what constitutes a reasonable search is different from when we rode horses and fired muskets.
There’s merit in trying to ascertain what the Founders intended the Constitution to mean, but that doesn’t mean that our understanding has to be the same. George Washington wanted a well-regulated militia but he couldn’t imagine a teenager gunning down two classrooms of first graders in less than five minutes. I think if Washington took a guided tour of the Pentagon and the Situation Room, his concern about having a well-regulated militia would go out the door. If he saw what happens on a regular basis in our schools, malls, and workplaces with gun violence, I think he’d be appalled. In his day mass shootings weren’t just unusual, they were impossible. I don’t think he’d believe that the NRA was being reasonable at all.
So, really, it doesn’t matter that the Founders didn’t endorse the abolition of slavery and the death sentence or gay marriage or abortion rights or female suffrage. They knew that standards would change and they provided us with a way to deal with that change. In some cases, we could amend the Constitution, in others we could pass new laws, and in still others judges would make rulings consistent with changing standards about privacy and human sexuality and crime and punishment.
We aren’t supposed to live in amber, stunted with the same moral sensibilities as 18th-Century men.
[Cross-posted at Booman Tribune]
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