The Constitution of the United States of America, the foundation of the federal government, is 235 years old.
The US Senate declares the Constitution to be “the world’s longest surviving written charter of government”. This is a point of pride for many Americans, and the assumption is that its longevity provides a source of stability for a huge and sprawling nation.
But a conservative majority on the Supreme Court is reinterpreting the Constitution regarding individual rights and government regulations, most recently regarding guns with abortion on the table. Environmental protection and the administration of government are also at stake.
These reinterpretations risk exacerbating conflict among Americans and the current crisis in governance. They raise fundamental questions: how can a government established by an 18th Century document address and solve the problems of the 21st?
In the wake of the tragedy in Uvalde, Texas, when 19 schoolchildren and two teachers were massacred with an AR-15 semiautomatic rifle at the hands of an 18-year-old man, gun violence once again has Americans’ attention.
Meanwhile, the Supreme Court has ruled in favour of a case brought by a local gun club against the New York state law requiring anyone applying for a licence to carry a concealed handgun to show “a special need for self-protection”.
The ruling renders the law an unconstitutional violation of the second amendment right to bear arms. “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”.
For much of United States history, in fact until well into 20th Century, this amendment was not understood as a guarantee of individual gun rights but as part of a well-regulated state militia. This understanding allowed for local and state gun laws to regulate the ownership, licensing, and use of firearms.
Another case dealt with by the Supreme Court is abortion. In this case Dobbs v. Jackson Women’s Health Organization, the conservative judges opted to curtail if not completely abolish federally protected abortion rights.
At issue was a Mississippi law banning abortion after 15 weeks of pregnancy, but the state has asked the court to go further still: overturning Roe v. Wade, which legalised abortion for the nation in 1973, and declare there is no constitutional right to abortion.
In a chilling draft opinion penned by Justice Samuel Alito, controversially leaked in advance of a formal announcement, the conservative majority does just that, taking away a right that Americans have relied on for 50 years and leaving it up to the states to protect, or not, abortion rights.
Alito’s draft decision overrules the earlier court’s interpretation of two amendments. The Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”, has been understood to provide for a “right to privacy,” and the Fourteenth Amendment’s Due Process clause, “No person shall … be deprived of life, liberty, or property without due process of law”, meant that any limits on the right to privacy must be justified by a “compelling state interest”.
On this basis, Roe allowed abortion rights but also announced they were not absolute. States could limit access for multiple reasons, and they did and continue to do so. Despite these limitations, Alito argues that the Roe v. Wade decision was “egregiously wrong from the start.”
The final decision closely followed that draft. Other court decisions based on rights to personal privacy and freedom from state action that drew on Roe as a precedent will be undermined, for example on contraception and gay marriage.
Ready to reverse settled law on abortion and guns, the conservative justices dismiss or discount historical context as well as current conditions. They do this claiming fidelity to the original interpretation of the Constitution and amendments.
On abortion rights, Justice Alito argues that “The Constitution makes no reference to abortion,” but of course it doesn’t. At the nation’s founding, abortion was legal ‘pre-quickening’ (before foetal movement can be detected); it only became fully criminalised in the later 19th Century. And the muskets and flintlock pistols of the era of the Second Amendment and state militias have been replaced with exponentially more powerful weapons, and mass shootings.
In the short-term this Supreme Court will rule as it will, with no concern about the consequences. Americans often propose amending the Constitution, retrofitting it for the new conditions of a new century. The founding fathers included an amendment process, because they recognised changes would be required to address future challenges, but they also made that process incredibly difficult.
There is another possible response, one that could get the attention of the originalists on the Supreme Court. We could remind them and all Americans of the Constitution’s preamble.
Recently called the ‘forgotten preamble’ because, beyond the first three words, it is rarely quoted in full: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” This lays out the purpose for the Constitution, and everything that follows it is in service to that purpose.
Surely gun regulation could be seen as ensuring domestic tranquility, abortion rights as securing women’s liberty, and both could be interpreted as promoting the general welfare?
As we mark the United States Constitution at 235, it’s time to remember why it was written and ratified in the first place. Looking back may help us move forward.