The lack of easily discernable standards for using Founding-era documents in constitutional interpretation is undermining public confidence in the Supreme Court’s ability to use the Founders authoritatively.
Interpreting the Constitution afresh is a once-in-a-lifetime occurrence for most judges. In these rare instances, judges can don a historian’s hat in excavating the Founders’ documents. This past term’s gun-rights case, D.C. v. Heller, presented just such an opportunity for the Supreme Court justices. Yet because issues of constitutional first impression are so rare, there is no accepted standard for such historical excavation. Predictably, both minority and majority opinions in Heller suffered from this deficiency. Each came across as political, in part because of what appeared to be arbitrary cherry-picking from the Founders.
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