Blurts & Spasms

That would be a difficult leap, because if there is agreement on “explicit” meaning, then Article V would have to be invoked to change it, and a “living constitutionalist” approach would not apply. If the meaning is unclear — subject to evolving interpretation — then judicial history has also already been “explicit” about how a given issue should be handled (stare decisis). So this begs the question: what is the reason for departure in either case? The real problem, IMO, is folks thinking they know what the Constitution “explicitly” means in instances that may actually be pretty difficult to parse (the 2nd Amendment is, unfortunately, a very good example). But all sides of the interpretation argument are projecting modern contextual and linguistic assumptions (embedded as they are in political bias) onto a 230-year-old document, whether they realize it or not — textualists/constructionists do this just as often as intentionalists, pragmatists, etc.

To address such challenges, Hegel and others promoted the idea of “historicism,” where we resist projecting our own current understanding backwards onto folks who wrote in different times, and instead rigorously explore the immediate history, culture, education, etc. of those times that influenced the writer’s thinking. This is difficult to do, but it seems to me the only way forward in terms of finding common ground about what the Constitution really meant at the time.

Unfortunately, the political pressures of today are so intense — and some judges are so profoundly influenced by them — that there is decreasing consistency about Constitutional interpretation from the bench. To date this has evidenced much more at the right-leaning end of the judicial spectrum, but it sometimes occurs with left-leaning folks as well. And when such inconsistency manifests at the level of SCOTUS, it has devastating consequences for the rule of law (i.e. it induces instability across all of society). It’s a sad state of affairs, regardless.

Lastly, I think the framers would take issue with many rulings today not because they aren’t logically consistent with a given hermeneutic, but because they depart so radically from common sense. Hence the “doctrine of absurdity” comes to the rescue (even though it shouldn’t have to).

My 2 cents.