Owen from Southern Appeal has responded to my original thoughts on this 9th/14th Amendment controversy. He begins on a note of agreement:
The Constitution does indeed contain timeless ideals, but they are timeless because they are specific concepts that can be adapted to changing circumstances. Thus new forms of weaponry don't necessarily change the meaning of the Second Amendment, and nor do innovations in communication chance how we view the protections guaranteed by the First Amendment. However, the basic concepts themselves remain intact. Otherwise, they would devolve into incoherency.
Jon seems to recognize this, but then his argument degenerates into something which justifies the "living document interpretation" (a fact which he vigorously denies):
I think I can anticipate Clayton Cramer's response: The Framers may not have known of the existence of condoms, DVDs, machine-guns or the broadcast media, but they did know that "sodomy" existed. Therefore "sodomy" is not an "unforeseen circumstance" that could not have been dealt with. But what of changes in attitudes, values, knowledge, or the "rethinking" through certain "ideals" in way different, but perhaps broader and more consistent, than the framers' original contemplations?
Owen then writes, “Yes, what if we 'rethought' the notion of habeas corpus? Or of free speech? Why, we can abolish the entire Bill of Rights if we want to!?”
Now let’s read what I wrote very carefully: When I wrote, “rethink through certain ‘ideals’ in a way different…” I immediately followed it, with “but perhaps broader and consistent than the framers' original contemplations.” Maybe I needed to choose my words more carefully. If I am the source of the confusion, then I apologize. When I used the term “different,” I meant applying the SAME rule (free speech, equality, free exercise of religion, for examples) in a way that the framers might not have conceived of at the time. I didn’t mean throwing out the rule, or coming up with a new rule—I favor not only following the rules that the framers came forth with, but expanding their application, making them more universally apply today, than they did at the time these rules were enacted. For instance, when the framers wrote “all men are created equal,” perhaps they meant only males. I would take the same principle: “equality” and apply it to females as well. That is, if we logically think through why the framers concluded that all males are created equal and apply their rules and their logic, we might also rightly conclude that all females are created equal and that females are equal to males in their possession of rights as well.
To give another example, when the framers wrote the word, “religion,” some of them only meant “Protestant sects,” others—Jefferson & Madison—for instance, meant all religions. I side with Jefferson & Madison’s universal application of our religion clauses.
Thus the conclusion that Owen draws from my post, that my logic warrants, “throwing out the Bill of Rights entirely,” is precisely the opposite of what I argue for. My logic takes the Bill of Rights and seeks to broaden its application in ways that perhaps the Framers did not “subjectively” contemplate. But they did, I think, objectively realize that future generations would do this. In fact, they gave future generations a green light to rethink the applicability of these ideals by writing them in such broad and general language.
Let me go on record as stating that I believe that every single word in the Declaration and the Constitution is controlling law. I believe in the integrity of the constitutional text and do not believe that we may properly throw out one word. When we start cutting out pieces of the Constitution—that, to me, makes it into a “living document.” And that’s exactly what the leftists have done with the 2nd Amendment and it’s exactly what Judge Bork has done with the 9th and the Privileges or Immunities Clause of the 14th.
Owen writes further:
You see the problem. Jonathan tries to draw a connection between "unforseen circumstances," such as technolgical innovations, and changes in popular moral philosophy. However, technological innovations are matters of fact. We have television, radio, and the internet, and we didn't have them before. Accordingly, they have to be integrated into the First Amendment with a mind for the ideal it represents. Similarly, we have to consider that the word "arms" in the Second Amendment wasn't accounting for devices of global destruction, and so the hydrogen bomb probably shouldn't be owned by a militaman in Utah. And that's still consistent with the Second Amendment.
However, if we were to decided, today, that free speech wasn't really as good a thing as the founders thought it was, we would have one of two choices: 1) pass a constitutional amendment overriding the First Amendment, or 2) accept the fact that that the founders disagreed, and that the Constitution is still legally-binding. We shouldn't, however, have the option of ignoring the First Amendment simply because our ideals have changed, or our interpretations of basic concepts have changed. If that weren't the case, then we'd no longer have a Constitution at all.
Now that Owen understands my position, he realizes that I never argued that we could ignore or throw out one letter of the Constitution. I agree with him completely that as long as the First Amendment is on the books we MUST have “freedom of speech,” ditto with the Second. However, I believe, and I think Owen does too, that “freedom of speech” can be applied in a way different—and by that I mean broader, more universal—than many or most of the framers of that document perhaps intended, or planned that it apply at that time.
Speaking of Freedom of Speech—I wonder what Owen thinks of how this Amendment should be interpreted. Using the same “original intent” logic that he and Cramer use, we may rightly conclude that the founders intended (at least for their time) a much narrower application of that wonderful ideal than we have today. And no, I’m not just referring to hard core pornography. I had a professor in law school who had a conservative jurisprudence similar to (although not exactly) Owen’s, & Clayton’s (and I cherish the experience in his class—we desperately needed the ideological diversity). He would argue, if you want to determine how the framers thought these rules should be understood, look at what they did. Look at the actions they took when those rules were enacted. Look at how they behaved. That is, if the Framers ratify X, but they immediately do Y, then we should conclude that Y is compatible with rule X. The same framers who gave us the First Amendment’s free speech clause also gave us the Alien and Sedition Acts. That ACT allows for the criminal prosecution of POLITICAL speech. Therefore, my professor concluded this act must have been constitutional—consistent with the free speech clause. So what was the First Amendment norm that he derived? Free Speech means that government cannot enact prior restraints on speech. Government can punish anything they want after the fact. If you don't like it, vote them out.
I wonder if Owen thinks this to be the “proper” understanding of the First Amendment's free speech clause, or if he, like me, favors a broader and more universal application of this timeless ideal.
I love these conservatives: The Constitution and the Declaration are both written in such magnificent language, lauding wonderful ideals in a very broad way. But then when we look at historical practice—look at how the Framers, in practice, dealt with things like “religion,” “equality,” “free speech,” “liberty,” “the pursuit of happiness,”—these conservatives reply the Framers' subjective intentions suggest that they really didn’t mean it, or that they really didn’t mean much—they meant these broadly enunciated rules to apply only to a wee number of circumstances. And you know something, I’ve seen leftists—I’m thinking the “critical legal theorists”—come to these exact same conclusions. But they do so to nauseate lawyers away from the concept of “original intent,” ala Bork and Scalia. "Yeah the framers intended equality to apply only to white, Protestant, propertied males," these leftists will claim (my same conservative professor informed us that both the Establishment and Free Exercise clauses were intended to apply only to Protestant sects—and he was a Catholic!). "Free speech only meant prior restraints." The basic message that my constitutional law professor (not the conservative; the guy who was my general con law professor is a leader in the critical legal studies field) gave to us regarding "original intent" was “What a bunch of assholes the Framers were!”
I consider myself a Madisonian, Jeffersonian originalist. These men posited wonderful ideals even if they always didn’t consistently apply, or live up to them. If I am guilty of anything, it’s wanting Madisonian & Jeffersonian ideals to apply to more folks and more scenarios than perhaps these men originally (subjectively) contemplated would be done in their own time.