Chapter 2: What Were They Thinking?
Page 46: Does it matter?
Sis trying to plug modern technology into a leather book from 1787
SIS
We can’t run a 21st-Century country with an 18th-Century mindset…
Society would break!
AVERAGE JOE
Yes, but…
Assorted judges
JUDGES
But what?
We apply the Constitution to this world. If it’s to be meaningful, its words must mean what we think they mean here!
Or what they ought to mean?
What we can make them mean!
I mean…
…Hey, that’s mean
James Wilson arguing with a modern judge
JAMES WILSON
You mea- uh, unelected judges… rewriting the Constitution? Who died and made you sovereign?
If you care what we were thinking, this is precisely the kind of power grab we were trying to prevent.
MODERN JUDGE
No, you misunderstand!
We’re only re-interpreting the language, so it can apply to new issues. Nobody is re-writing anything.
WILSON
Then amend the language so it does apply! If our ideas would break society, then fix them with an amendment!
But! It must be the people who fix it, not a handful of well-meaning know-it-alls in government.
Sis with an “aw, do we have to” posture
SIS
But amending it is so hard!
James Wilson shrugging, Joe holding Sis back
WILSON
Yes… on purpose… for good reason…
And that’s no reason to use judicial power to get around the people.
SIS (furious)
How can you say that?
If judges hadn’t created constitutional rules… if we’d had to wait for amendments…
We’d still have segregation! Discrimination might still be legal! Abortion-
JOE
Whoa — we’re getting way ahead of ourselves! Save it for when we get there!
But you do have a point…
Joe watching a pendulum swing and BONK pawn-shaped markers off the ground.
JOE
Yes, societal attitudes do change. And yes, the law should adapt. But those were courts making decisions you like.
History makes it clear that the pendulum can easily swing the other way.
When the other side comes to power, do you want their judges to have the same power to reinvent the Constitution?
The power to protect rights & freedoms we like is the power to undermine the ones that they don’t like!
Sis & Joe looking surprised and abashed
NARRATOR
Stop it, both of you.
The courts have always played a role in making sure the law — even the Constitution — changes to fit a changing society.
Different colored drops gradually changing the color of a glass of water.
NARRATOR
It’s called “precedent.”
In case after case, decision after decision, traditions of what the Constitution means build up over time… evolving with each nuance, each new circumstance.
Rainbow flow changing water white, Sis looking into a glass of silvery liquid, Joe clutching his head.
NARRATOR
Constitutional Law is a kind of common law, slowly catching up to society and describing our values, not prescribing them.
SIS
Is that supposed to be a mirror?
Awful mirror.
JOE
For crying out loud…
Joe throwing arms in frustration, Gouverneur Morris and James Madison looking on
JOE
All I wanted was to take a moment to finish this chapter, and explain what! THEY! WERE! THINKING!
GOUVERNEUR MORRIS
And I say who cares what we were thinking? Just use the ordinary meaning of the plain text at the time it was written.
JAMES MADISON
And I say who cares what we were thinking! Just rely on what the people thought it meant at the time they adopted it.
Sis, a judge, and a random person
SIS
And I say who cares what they were thinking! Just apply what it means to us here and now.
JUDGE
And I say who cares what they were thinking! Just apply its essential principles to modern situations.
PERSON
And I say who cares what they were thinking! Just apply the principles it ought to have.
NARRATOR
Yeah, who cares…
Faceless voices
NARRATOR
…just apply the precedents as they keep evolving.
VARIOUS VOICES
Who cares? The Constitution is an illegitimate system that only preserves and promotes injustice.
Who cares? Just ask what scholars say it means.
Who cares?
Who cares? All meaning is a human invention. Nothing is really foundational.
Who cares? “What they thought” and “what it means” are the wrong questions.
Who cares?
Who cares? Assigning meaning perpetuates the oppression of the non-privileged!
Who cares? Who cares? Who cares? Who cares?
Gouverneur Morris and James Madison explaining to Average Joe.
MORRIS
Anyway, little fella, you already admitted that you can’t really know what we were really thinking.
MADISON
There’s no transcript of the convention… Our notes are contradictory… We had contradictory ideas… We changed our minds… More than one altered bits later to look better to posterity…
Various Framers of the Constitution
VARIOUS
As you said: We were all brainstorming!
Tossing around all kinds of ideas.
Even what we said isn’t necessarily what we believed.
And as you said: Why any given delegate voted for any given resolution is anybody’s guess.
Joe, stomping in frustration
JOE
By thunder, this chapter is called “What Were They Thinking” and by thunder we’re going to tell the nice readers what they were thinking!
Ben Franklin
BEN FRANKLIN
Might I suggest…
a compromise?