The role that Colonial practices should play in constitutional jurisprudence has long been debated, with U.S. Supreme Court Justice Antonin Scalia serving as the most prominent supporter of the view that the guarantees of the Bill of Rights must be grounded in the original intentions of the “Founding Fathers.” Yet, with nearly 250 years separating contemporary American society from the Declaration of Independence, the tenuousness of this position becomes increasingly evident.
Two Supreme Court decisions from the recently concluded term dramatically illustrate the “original intent” tensions in the court. In one—Town of Greece, New York v. Galloway1—the court invoked 18th century practices to turn back an Establishment Clause challenge to prayers that precede town meetings in a community outside of Rochester. In a second case—Riley v. California2—the court fully embraced 21st century privacy concerns in holding that police officers must have a warrant before examining the contents of the smartphones of arrestees. The analytical gulf between these two rulings leaves one wondering which century defines the Supreme Court’s view of the Bill of Rights.
