How would they find if it were 1789?

Clayton Cramer bemoans lawyers and judges for judicial activism: “The delusion of ‘living constitution’ has given way to something a bit more bald-faced: judicial tyranny.” Cramer defines judicial activism as any judge not pretending that he or she lives in 1789 (or 1868) when interpreting the Constitution. For instance, when dealing with whether there is a right for consenting same-sex adults to have sex within the privacy of their homes…well let’s ask what people of that time specifically thought about these acts; when asking what “cruel and unusual punishment” means, we need to get into a 1789 frame of mind, etc.

The problem with Cramer’s analysis is that arguably this is NOT how the framers intended the Constitution to be interpreted. They realized that opinions would change, and wrote a Constitution that contained many broad generalities capable of changing with the times. One reason why the Constitution has lasted so long is precisely because it was written with such generalities that don’t trap us in a 1789 frame of mind. This is NOT the same things as believing in a “living Constitution.” That means that judges are free to cut parts out of the Constitution and add parts in. The text of the Constitution is what it is. If an individual right is listed in there—for instance, the right to bear arms, then this is a right that the people have, period. We must follow the text of the Constitution and keep consistent with original principles—the underlying policies that led the Founders to write those texts in the first place.

Do I have any evidence that the Founders did NOT want us to constantly "go back in time to 1789" when deciding present Constitutional issues? Yes. From Thomas Jefferson:

“[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

As long as we pay fidelity to the text and original principles of the Constitution, where the Constitution speaks in broad generalities such as “Congress shall make no law…abridging the Freedom of Speech,” we rightly conclude that the Founders intended this meaning to change with the times and didn’t want us to ask, “what would we do in 1789?”