Radical Activism in the Supreme Court

In the last decade or so, the Supreme Court has operated under the doctrine that the Constitution must be interpreted literally; that is, the words must be taken for just what they say, no more, no less; and that no historical arguments or previous judicial opinions ought to be considered. This practice was unknown before the arrival of Justice Antonin G. Scalia to the Court. In his view, history does not matter, previous opinions can be disregarded, and the justices are free to (in fact, must) rely on their own understanding of what the constitutional text meant to its authors. Scalia's views became dominant in the Roberts Court.

Although the proponents of this way of thinking about the Constitution pretend to be conservatives, they are in fact radical activists. In their rulings they have tossed out decades, even centuries, of judicial interpretation and have exposed themselves to the dangers of historical anachronisms.

In particular they have made gun ownership and freedom of religion into near absolute rights.

The position of Justice Scalia amounts to this (exaggerated): No one knew what the constitution meant until I came along. And, it doesn't matter what was going on when the Constitution was adopted. There is a further presupposition: that the Constitution is an infallible document, like the Bible.

Consider the Second Amendment: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The Roberts Court deliberately ignored the dependent clause and declared the only relevant part of the amendment to be "the right of the people to keep and bear arms shall not be infringed." The meaning of the amendment was therefore that gun rights are almost entirely unrestricted.

Still, history matters, and it has something important to teach us when we think about the second amendment. All previous Supreme Courts have understood the validity of this history lesson. Even though they may have based their decisions on other grounds, they have taken into account the dependent clause, A well regulated militia being necessary to the security of a free state, rather than focusing exclusively on the main clause.

According to Wikipedia, a militia is composed of "non-professional fighters; citizens of a nation or subjects of a state or government that can be called upon to enter a combat situation, as opposed to a professional force of regular, full-time military personnel."

Previous Supreme Courts looked back to the time the Constitution was adopted. At that time the newly formed states had no armies and no armories. When there were threats to the security of the state, the authorities called up the militia; and all able-bodied men were expected to respond, providing their own arms, which would have been their own gun which they used for all purposes, including self-defense and hunting. This is the basis of the first part of the amendment: if the state is to be defended, citizens must have guns to take with them as they muster for the militia. They would have joined with others in "well regulated" militias, and when their militia duty was ended, they returned home, with their guns, and resumed their normal lives.

Obviously, if a man had no gun he could not fulfill his public duty to serve in the militia. So the right of the people to keep and bear arms shall not be infringed. Why was this so important? Because, during British rule of the Colonies, British troops had seized guns from the colonists expressly to prevent their use by militias fighting the British forces. The Revolutionary War was fought only a few years before the Constitution was adopted, and those memories were fresh in people's minds. In 1787, no one knew whether the new nation would survive, or whether just men or tyrants would control it. It was therefore essential to guarantee that militias would be viable, and for that it was necessary to guarantee that militiamen would be armed.

This historical perspective clearly does NOT in itself support the idea that private ownership of guns is protected outside the militia context or that no restrictions can be placed upon them, far less that these are absolute rights.

The Roberts Court has also liberally reinterpreted the freedom of religion clause in the First Amendment, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

During early American history, most of the colonies supported official churches to the exclusion of others; these were known as established churches. Dissenters from these churches were usually tolerated but not always treated equally. The Virginia Statute for Religious Freedom (written by Thomas Jefferson) set the stage for the freedom of religion clause. To say at that time that Congress shall make no law respecting an establishment of religion meant specifically that it could not single out any one church for state support, collect taxes on its behalf, and so on. The free exercise clause reserved the right to profess any religious belief and to engage in religious rituals. It did NOT imply that someone could express a belief and insist that others had to be bound by it, limiting their own actions because of what another person believed. It also did not imply that a person could be excused from obedience to a law because it conflicted with his beliefs.

The Roberts Court went far beyond the simple constitutional provision to say that any claimed religious belief has consequences for everyone in society. Thus, not only can I set up my own church and worship in it as I please, and act as my conscience calls me to do; I can also expect that others will have to tailor their own actions so that they do not interfere in any way with my beliefs.

In the past, taking such a position was hardly imaginable. For example, the conscientious objector's belief did not save him from the consequences of the law. Likewise, Christian Scientist parents who refused vaccines for their children were held legally liable for public health reasons. Finally, back in the Civil Rights days, some defended segregation on religious grounds. They too had to give in to the broader public interest.

By the same token, it would perhaps be just if the religious preferences of those refusing service to gay people and those denying contraception to their employees were overruled by the public interest. This will not happen, of course

No Court is required to take historical considerations into account in its constitutional deliberations, but neither should it archly claim they are irrelevant.