“The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government.” […]thomas jefferson — in a letter to james madison, sept. 6, 1789
“This principle that the earth belongs to the living, & not to the dead, is of very extensive application & consequences, in every country…”
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Thomas Jefferson, as most of you know, was one of the six (6) Core Founding Fathers of our nation in the late 18th century. James Madison was as well and these two great scholars—Jefferson and Madison—contributed enormously to the idea, the drafting, writing, and ratifying of our U.S. Constitution in 1787–1788.
In his letter of September 6, 1789 to Madison who was back in the American colonies, Jefferson was witnessing firsthand the start of the French Revolution. What he saw and interpreted from the French people was not unlike he and his American colleagues, the other five core Founding Fathers, and American colonists had also recently lived: revolution and independence from tyranny.
Now let’s jump to a modern enigma. What or whom is an Originalist? According to the National Constitution Center in Philadelphia, PA, “Originalism is a theory of the interpretation of legal texts, including the text of the [18th century] Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law [in the late 1700’s].”
As you might infer from his 1789 Madison letter, as well as his 1816 letter to Virginia lawyer Samuel Kercheval, Thomas Jefferson would have undoubtedly and adamantly opposed this view of our nation’s rule of law if he were alive today for comment. Yet, his many letters to friends and colleagues amply demonstrate his position on Originalism vs. Living Constitution. And Jefferson was not the only Founding Father who would most certainly oppose this controversial political theory of Originalism. Edmund Randolph, also an attorney and Constitutional delegate from Virginia, wrote in his draft of a constitution:
To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.edmund randolph — july 1787
There are also historical precedents from our Supreme Court Justices referencing the Eighth Amendment in their 1958 decision on Trop v Dulles and “evolving standards of decency.” With this historical background in mind, I would like to propose an idea, a compromise for our modern American Pro-gun, Pro-violence advocates and fanatical Constitutional originalists.
Let’s suppose for a minute that Originalism is an infallibly correct political, legal interpretation and application of the U.S. Constitution today and its first eleven Amendments up to the Twelfth Amendment of 1804. Let’s also suppose that the Second Amendment, written in 1791, should stand exactly how our legislators of the late 18th century explicitly meant its content between 1787 to 1791 regarding state militias and their arms/weapons of the time. Because those 18th century law-makers couldn’t have known the unspeakable level of carnage and lethality brought on targets in a matter of a few minutes by an armed 20th or 21st century shooter with specialized weapons or armaments, let’s see where this leads. Let us follow to its conclusion, for the sake of fairness or argument, the modern Originalist’s logic.
In keeping staunchly with the spirit of originalism and the “original” 2nd Amendment, and since it seems they all must have various high-capacity military weapons in their possession for their personal pleasures. So let’s say all modern-day Pro-gunners and Pro-violence advocates in America can choose from these 18th century (only) flintlock rifles and pistols to your heart’s content and their large private arsenals. Here are some of your choices; get your original 18th century firearms now and show-off your (asinine) stubborn commitment to “original” 1770 — 1799 laws, amendments, and flintlocks and their so-so not so rapid reloading! 😊 Footnote, notice the sale prices on each firearm by antique dealers.
If I were to follow to its end the logic of modern-day Originalists in the U.S., then I can argue my own ‘right to bear arms’ gives me the equal right to own a nuclear weapon or bomb. After all, nuclear weapons are an armament or arms as defined by the 18th century Second Amendment, and just as important, nor are nukes explicitly banned in writing by the Constitutional framers of 1791. Voilà! Me and my good ole boys all get nuclear arms; it’s our God-given Second Amendment rights! Let’s unload our 30- and 60-round AR-15 magazines in the air in wild celebration!
Pffft! I’ll grossly understate: ludicrous logic, right? By the way, as of the 185th day in 2022, the U.S. has had at least 314 mass shootings or massacres and more than 22,750 Americans have died due to gun-violence this year.
Now, back to reality.
How many Pro-gun, Pro-violence, 2nd Amendment defenders, and Constitutional Originalists—and probably Anti-abortion lovers too—like Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh and all other legislative, law-enforcement, and pro-gun American citizens do you think would gladly give up all their 20th and 21st century firearms for “original” late-18th century firearms that our Founding Fathers and Constitutional framers knew of back then when drafting our Laws of the Land? It really begs the question, Is Originalism even a tenable position today, legally or theoretically? Hah! 🙄
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Originalism is a scam. Take documents no one actually understands and you can treat them any way you want.
Note–in 1880, the town of Tombstone, AZ (Yes, that Tombstone, AZ) banned the carrying of all lethal weapons in town. But, according to Clarence Thomas, that is too far back as to count as a precedent.
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It is indeed a farce Steve. Mind-boggling how modern-day Justices, legislatures, government executives at the highest levels, and ordinary Americans (about half or 43% right now?) believe it is infallibly true… and in the same way they believe in the Greek 2nd–3rd century CE Canonical Bible is “Divinely inspired” like our Constitution (is not)! 🤦♂️
Hahaha! Your Clarence Thomas point about Tombstone, AZ, is spot-on! Not only does it nail the 🍎 off his pea-brained head, but it splits the previous arrow on the target behind him Fitzooth style! 🎯 Well done Sir. 😉
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You mean you don’t have a nuke? Shame on you Prof! Got mine tucked up under my bed in case those damn Ruskies decide to come any closer!
Seriously though I really don’t understand much of your constitution or whatever but as an outsider looking in your Country is pretty f*@ked up (or a lot of the knuckle draggers are) even more than ours!
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I don’t have a nuke presently Brian, no. 🙄 My one-sentence application for the purchase of one must be submitted at the Five & Dime Store at the downtown crossroads of “Take It From My Cold Dead Body” Boulevard and “Come And Take It!” Avenue… near Uvalde, Texas. Every time I go in the 5 & 10 store with it I get distracted by all the hunting and tactical magazines on the shelves along with all the walls COVERED with military assault weapons, from ceiling to floor! The Nuke Dept. is in the back. Sheesh.
We are pretty effed up here Brian, or at least about 43% of Americans, most likely much more, are completely illogical with their self-serving politics. This obviously includes too many of our nation’s highest officials. At least you Brits can speak pretty intelligently when leaving voicemail threats on government office phones (see link below). We have way, WAY too many redneck, Hillbilly-dimwits (typically from former Confederate states) who barely have a 10-word vocabulary. Listen to their backwoods IQ…
Or if you don’t use Twitter as I don’t, here’s different link. Scroll down to the Twitter feed:
Yes, shamefully Brian this type of remote, barbaric backwood’s idiocy makes up around 40% to 45% of our population—and it’s the 21st century too! 😟
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Stop the complaining, guys, we have the best government money can buy!
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😄 True. But I shouldn’t be laughing. However, your point RaPaR is dead-on. 🎯
It’s fairly obvious that the only way to stop shootings is with more shootings; Just like the only way to stop STD’s is with more STD’s!
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BWAAAAA! 😆 Pink, your (flawed) cognitive logic (in satire of course) does reflect PERFECTLY the Pro-gun, Pro-violence, ultra-Conservative Originalist base in this country that is running amok with military grade weapons. Excellent comment Sir. Thank you. 🙂
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Satire? If enough people die of AIDS, no one needs to worry about Herpes. It makes perfect sense.
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I think you should take your ideas into a court room Prof, you have missed your calling in life because this type of sense will confuse the Republican judges without a doubt.
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Honestly Sklyjd, I’m not so sure my logical sense would even illicit a peep or grumble from them. It has become glaringly obvious that in the U.S. over the last 2-3 decades, and made disturbingly clear from Dec. 2019 through early 2022 (with regular outbreaks of new variants) that not only do many/most Americans think Public Health & Safety against COVID-19 for example, is a critical going concern—“we don’t need no stinking masks, vaxxes, or lockdowns/restrictions!“—but neither does half of our public governing officials! The data overwhelming reflects this, particularly in Red states.
Not sure those Republican judges or legislatures would care, much less raise an eyebrow, one bit if I exercised my 2nd Amendment right to own a nuclear bomb. That would require way too much brain-power for them. And btw, the 18-century engineers of our Constitution and Amendments don’t say ANYTHING about me having or not having a nuke. Pffffft! So there! 😁
I just don’t get it Sklyjd. It’s all beyond my simple common sense.