What the Constitution Means To Me
With apologies to Heidi Schreck
This Middlebrow musing started as one about the aesthetics of gun collecting and gun culture, but it wound up mired in details about military-style weapons, black powder antiquity, police revolvers and gun control in the territories during the westward expansion of United States settlers in the 19th century. The quick point was that guns are both uniquely dangerous and “just things” and that gun culture is in many ways similar to any sort of collecting culture or fandom, but also fundamentally different because guns not only kill, but do so efficiently.
Another wrinkle is that the U.S. Constitution, as currently interpreted, singled out gun ownership as a specific, individual right that applies to no other thing that humanity or nature has created. For example, the government regulates car ownership, manufacture and use at all levels. For the typical American, this means getting licensed to drive on public roads, registering the car in their state of residence and buying required liability insurance. Challenges to these regulations are met with the response that though you might need to drive, want to drive and love to drive, you have no inherent right to drive.
Well, why don’t we have a right to drive? One practical answer is that cars use common infrastructure. We share roads that are public goods and so regulation is both acceptable and essential. But guns also exist within a common infrastructure. We share police and hospitals that must respond to gun violence. So, it’s not just an issue of shared community.
We don’t have the right to drive because the authors of the Constitution and the Bill of Rights never included anything like, “Acknowledging that a free people must have freedom of movement, Congress shall pass no law restricting the right to transportation, by animal or machine.” If they had, AAA would be the most powerful political force in the country now.
From The Middlebrow’s standpoint in 2022, the right to own means of travel seems more closely tied to personal freedom and autonomy than the right to own weapons. As a thought experiment, imagine what you might add to the Bill of Rights, were you creating a fundamental legal document for society today. Mine might include something like Franklin Roosevelt’s “Four Freedoms” which include freedom of speech, freedom to worship, freedom from want and freedom from fear. Though I might get more specific and add rights to shelter, food, and healthcare. I might even add “freedom from political parties,” which would ban public support for party primaries and the organization of the federal government along party lines.
But, this is all political and that’s not what The Middlebrow is for. The point here is to consider the Constitution as literature, which means looking at how it was written and how we deal with it now.
As literature, the Constitution, for all its remarkable qualities, resembles a large budget Hollywood production. It was intentionally focus-grouped from start to finish because representatives from any of the nascent states could have killed the whole thing. It was also written to have some permanence and to be difficult to change even when the nation was smaller, had fewer states and less geographical diversity.
The mechanisms for changing the Constitution did not scale well and have become almost impossible in a politically divided country of 300 million people across 50 states, particularly given the outsized influence of parties on our politics (there I go again).
Ironically, our inability to change our Constitution has added to its durability. The Constitution may have been focus grouped, but it cannot be easily altered by George Lucas or Disney like Star Wars. Its immunity from meddling makes it indestructible. Since it can’t be changed, how we read it becomes paramount.
One approach to interpreting the Constitution is to be incredibly literal. The words mean what they meant at the time they were written and that’s the end of it. Judges who believe this aren’t trying to be simplistic or difficult – they are trying to avoid abusing their own powers in the system.
The alternative to the very literal approach is to take an informed view about what the authors of the Constitution meant when they used the words they chose, and even to imagine how reasonable people would apply Constitutional principles today. Judges who take this approach see part of their role as maintaining the Constitution’s relevance in modern life. The literalists will argue that such an approach amounts to making law from the bench. But proponents of such interpretations will argue that it's necessary. The Constitutions authors were not sorcerers and their words have to be brought into the contexts of our lives.
The Middlebrow sees advantages to both arguments. When judges interpret, they give themselves a lot of power. They are not meant to be rabbis, studying the hermeneutics of ancient texts. However, we constantly ask judges to interpret the language and intent behind all sorts of other laws. Why not the Constitution?
This is also how we read literature and interpret art. We always look back to who the creator was, how they lived and what they might have intended. Do techniques that work for reading Shakespeare and Toni Morrison somehow not apply to Thomas Jefferson and James Madison?
People tend towards whatever interpretative technique that gets them to the answer that they want to find. That’s not meant to accuse anybody of being particularly craven. This is natural. No government institution – not the Department of Justice, the Federal Reserve or the Supreme Court is truly apolitical. All people have aims, desires and agendas. Avowed originalists can become very creative in their Constitutional readings when it suits them.
Anybody who follows the arts and literature knows this. Humanities scholarship, of which legal and Constitutional scholarship is a sub-category, always adjusts to conditions. The same fashions that move artists and writers in and out of favor, and sometimes in and out of the canon, are at work in how the courts interpret the Constitution. It comes down to what people with power and influence want, and how they can get there.
It’s good to avoid festishizing that. The authors of the Constitution didn’t create our contemporary relationship with guns. The people we put into power did.