The earth belongs always to the living generation
Another test is upon us this Independence Day. We face anew the fundamental question whether three hundred thirty million Americans must be bound to interpretations of 18th century mindsets regarding fundamental rights. The answer should be an emphatic no. This is without regard to the outcomes of any specific decisions like those from last month, but with a prospective focus on whether and how other rights and liberty may be examined in times to come. Our democratic republic has endured not just because of the genius of our constitutional framework, but because of timeless principles of freedom underlying and even beyond that framework. Time and again, as our understanding of humanity has advanced, those principles have demanded expanded recognitions of individual rights when confronted by obsolete appreciations of what it means to be an American.
We accept that our Founders had limitations. They brilliantly structured the Nation and cemented those immutable principles. For all that we owe eternal gratitude. But we must acknowledge their ignorance — or deep naïveté — in other areas. Before we bind ourselves to a philosophy that would solely adhere to current judicial perceptions of their supposed insights, we should consider that they did not know about electricity, the internal combustion engine, flight, radio, television, penicillin, computers, genetics, or even the zipper. They had never seen a photograph of the Earth, let alone imagined the Internet.
And we have far surpassed them in our understanding of humanity. We have long moved past archaic views of rights, privileges, and immunities. The United States — we — led global movements on freedom at great pain and cost. Our understanding of our equality, liberty, and dignities has evolved just as much as our knowledge of the universe. Much of our progress been in the last century, or even more recently. Just as with technology, we sometimes improve at breakthrough pace. Our modern constitutional application of fundamental freedoms should account for our advancements and our continued ability to progress.
These ideas are not new. We have long recognized that our progressions must guide our understanding of our endowments. Our Supreme Court expressed decades ago (for example) in its decision on contraception that the freedoms protected by the Bill of Rights have far deeper meanings than the limited text in the original amendments. It is not the constitution that grants fundamental rights. It is the constitution that protects them. An aspect of this principle was at play in the Second Amendment decision last month. To be sure, this recognition commissions us to appoint Justices with great care, a solemn responsibility those same Founders placed upon our shoulders in 1787. We have only ourselves to charge with shortcomings. We must entrust those we appoint with broader tools than mere consideration of less evolved thinking.
The past is unreachable anyway. Our courts are not well equipped to make conclusive determinations of 18th century mindsets, let alone to define fundamental freedoms strictly based on them. We have difficulty enough gauging the intent of live witnesses in a trial. No judge has or ever has had the extraordinary training to discern 18th century thinking and then to transport it forward to apply to modern contexts. Nor would any 21st century trial court accept any judge in history as a professional expert in the combined fields of history, psychology, psychiatry, and sociology that would be among the tools needed to translate, transport, and apply what the public might have thought centuries ago if presented with today’s questions.
We should trust our greater wisdom today. The defense for the strictest form of “originalism” hopes that it will prevent unelected federal judges from “creating” rights against popular will. Firmly fixing rights as they were viewed at the Nation’s beginning, the idea goes, should foreclose judicial excessiveness. But again, no one can really perform that interpretative task. And a choice today to adopt only the past is, in itself, a choice that would bind us to a superseded culture itself not chosen by today’s electorate. We see already the threats to institutional legitimacy when that strict approach is used on a Thursday to scope a fundamental right on the basis of perceived 18th century thinking and declare that right to be protected against state action, and on a Friday to undo a determined fundamental right on the basis of perceived 18th century thinking and declare that the scope of that right can only be defined by state action. There are more thoughtful tools to address concerns about the unelected.
It is the Fourth of July. We told the world in our Declaration of Independence that fundamental rights are “unalienable,” and that governments are created to “secure” rights that exist outside of structures. The scope of fundamental rights cannot be static as of 1776, 1787, 1868, or even 2022. This is the United States. Our knowledge of the universe has increased by multitudes since 1776. It must be that we can also evolve, comprehend, and apply more about ourselves, our rights, our equality, and our dignities as we move forward. We are not shackled to the past. As Thomas Jefferson said, “the earth belongs always to the living generation.”
July 4, 2022
