Dear Justice Gorsuch,
Thank you for your article on constitutional interpretation. You may believe that a response to the piece in question is a bit overdue—seeing that it was written two years ago, but I am not in the state of mind to delve into an unfamiliar topic, and to be completely clear, I don’t dispute that my choice of article to respond to isn’t low hanging fruit.
I’m writing today in support of a living interpretation of the Constitution, as opposed to an originalist one. To me, a good constitution can govern effectively throughout the entire span of time a nation-state exists. This presupposes that the way the Constitution is interpreted is via any method where the ills, preferences, and in general, the state of society are taken into account by those interpreting the Constitution.
Firstly, to reference your article, you state that Eighth Amendment’s Cruel and Unusual Punishment Clause, when properly interpreted, would apply against the potential use of lasers as a deliberately slow method of execution. Now, let’s flip this on its head and ask, would flogging be considered a protected method of punishment today? Law’s passed on the prevention of the corporal punishment aside, if any form of government being it the military or prison system employed either of these methods, would the practice remain unconstitutional? If you believe that these practices violate the Eighth Amendment, then you are not abiding by the original meaning of the Constitution: At the time the Bill of Rights was written, it was common practice for the military and certain prisons to use whipping as a means of punishment. If you believe that the methods, in light of their common use at the time, are acceptable in today’s America, then the constitution does not govern effectively.
Similarly, the second amendment calls for a “well regulated militia.” The purpose of this “well regulated militia” is up to debate now, but whether it be to defend the people from a tyrannical government, or to defend the United States of America from foreign threats, the state of private firearm ownership is abysmal compared to the behemoth that is the U.S. military, and other global superpowers. In a day and age where mutually assured destruction is arguably the reason why we’ve had our so-called Great Peace, the American people are ill-equipped to defend themselves. With this in mind, would you support private citizens being able to arm themselves with unmanned aerial drones for the sake of defence? Considering a rhetorical question more grounded in reality, seeing that the second amendment calls for the right to “keep and bear arms [should] not be infringed,” would you decide in favour of the unregulated purchasing of armaments if an opportunity arose?
While you may believe that some of the aforementioned opinions are correct when deciding with only the original meaning of the framers in mind, in the eyes of the American public, it is more than safe to say that many wouldn’t agree with those decisions.
As circumstances change and ideas are decided to be beneficial—such as judicial review, those who wield the power to interpret the constitution should be given the tools and opportunity to use the values highlighted in the constitution to make a decision that is most appropriate for the state that society is in.
The original framers highlighted, in the Preamble to the Constitution, that those who attended the Pennsylvania State Hall between May and September of 1787 strove to create a “more perfect union.” Unless self-proclaimed originalists wish their nation’s progress would remain stagnant in an ever-changing world, a good way to start heeding that advice is to not dwell solely upon an unquestionable wisdom—that is supposedly relevant centuries into the future—that all the framers of the current constitution wielded.
In response to: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/