"When we read Shakespeare we use a glossary because we want to know what it meant when it was written. We don't give those words their current meaning. So also with a statute - our statutes don't morph, they don't change meaning from age to age to comport with whatever the zeitgeist thinks appropriate...."The fairest reading of the text is what the law means." So wrote the late, great US Supreme Court Justice, Antonin Scalia.
This lesson on reading Shakespeare makes achievable for the common man the often-confusing effort to clearly understand what the Bard from Stratford-upon-Avon really meant to convey, and what his contemporaries actually understood. And by employing the method proffered here by Scalia in the ratified atmosphere of Constitutional jurisprudence that he taught to all who would listen, one may be able to ascertain the meaning, the substance and the correct application of our inspired Constitution and federal laws.
The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. The federal courts are tasked with the job of testing federal laws against the structure and meaning of the Constitution. Those which are found to be written pursuant to the Constitution will withstand the comparison. Those which do not show congruency with the Constitution must fall, and they are then rendered null and void.
Limited and Enumerated Powers
So if we give the Constitution its due respect, and because it is written recognizing principles that do not change, and because it has places limitations on the powers of the federal government, there is no need to change it to conform with the needs of modern society or the whims of modern social justice warriors. One needs only to ascertain the original meaning of the Constitution, and hold fast to it. Otherwise it will be altered to such a degree that the concept of limited government will cease to be operative. As justice Scalia has said, the Constitution says what it says, and doesn't say what it doesn't say.
Tortured interpretations are torture, and that is unconstitutional.
There are examples of what can happen when these principles, .ie limited and enumerated powers, and textual fidelity, are abandoned. One is explained by Justice Scalia in a speech he gave at Princeton University, where he said that the Constitution should be allowed to endure, instead of morphing and changing as the body of an
adolescent does during puberty. This is the "living Constitution" theory of interpretation. Said Scalia,
"There is absolutely no doubt that when the Eighth Amendment was
adopted - nobody, nobody, not a single person, thought" it applied to the death penalty, Scalia said. "Nonetheless, my four colleagues thought that somehow it was within their power to say that's what the cruel and unusual punishment clause means today, even though it never meant that. That is what the living Constitution produces."
If we want to keep law enforcement and our criminal justice system consistent and understandable for all, if we want people to be able to know about their conduct and whether it might be criminal or not, and if we want the punishment of criminal acts to actually be a deterrent, we must get back to the basic principles and structure of our Constitution, as originally written and intended by the Framers.
Another great example of the "enduring" Constitution is the issue of gender.
Today nobody has a handle on the current faddish and politically activist topic "gender studies". So is the Constitution, which was written more than two centuries before anyone ever even considered that there were more than two human genders and/or pronouns., in need of a change in order to keep up with culture? Nope.
The Constitution is gender neutral, using one word, "person" when referring to human beings. There was no need to amend it or change it in any way.
Further, giving women the right to vote did not require the 19th Amendment. More than one state had already done so prior to this amendment. Now, lest we be accused of "worshiping the Constitution, we acknowledge that there may need to be changes made. The Founders knew that, and so included Article V. But only a few of the formal amendments to date have been necessary, and several have been destructive.
George Washington said this, in his Farewell:
"If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."