Week 9

If you look around the world you will find that constitutions are the foundation for governments in nearly every country in the world. Constitutions do two major things, they create the structures of governments and they limit the government's power. Essentially they are designed to make life better in a given country.

The question then arises, if we know that constitutions are very common AND they are designed to make life better, what exactly are constitutions themselves? The answer might seem simple: it is a written text that guides lawmakers and judges in determining how laws ought to be created and applied. However, constitutions are actually much more complicated than they appear at first. 

Essentially every constitution exists in two forms. One form is the well know written aspect. Most countries have a text that functions as a constitution. Constitutions, in general, are 'general'. That is to say, they don't go into specifics. Let's look at one example. The second amendment is often debated today, part of the persistence of this debate lies in the complexity of interpreting what the passage means.

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.

 Taken literally, this passage seems to imply that there may not be any controls placed on the possession of weapons, due to the fact that such weapons may be needed to supply 'well-regulated' militias (citizen run military units) needed to defend the freedom of America. 

As you may notice, the laws in America do not reflect the exact sentiments expressed in this amendment. Here we can see why understanding what a constitution is can be difficult. Instead of reading the text as I have put it, most people, even the National Rifle Association, believe that there should be 'some' limits on what kinds of weapons people can buy, even those intended to defend the freedom of America. For instance, no one believes that the average American should be allowed to buy a nuclear bomb or a dangerous biological weapon. 

Soooo...how do we interpret the second amendment, when it says 

the right of the people to keep and bear arms shall not be infringed.

Nearly everyone agrees that some arms should be available to the general public, but what sort and why? One way to resolve this problem, is by adding a layer of interpretation to the text. So, in the instance of the Second Amendment, most people agree that, as the founders didn't anticipate nuclear weapons or air craft carriers, they didn't intend to guarantee the rights of individuals to keep and use those kinds of weapons. Instead, some people limit the text to only apply to the sorts of weapons commonly used, by militias, at the time of the amendment. These being, rifles, shotguns, and handguns. 

Additionally, we have the problem of dealing with the first half of the statements.

A well regulated militia being necessary to the security of a free state

In the United States today, we have the most highly trained, high-tech military that has ever existed. As a result, there is little need to maintain a militia system of citizen soldiers. Some have argued that this can be reinterpreted in a more general sense, in that self-defense is akin to the old militia system, while others have argued that the amendment no longer applies, as we don't currently use militias to defend ourselves.

As a result, two different definitions of a single word, within the amendment, can determine whether or not you believe it should be enforced. 

Thus a constitution can be best understood as a mixture of a written document, that we can see, and the ways that that document is interpreted and understood, that we can't. 

Different perspectives on Constitutional interpretation have emerged, two of the most influential are the Originalist and the Living Constitution models. 
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Important Term:

Constitution: A set of fundamental principles or established precedents according to which a state is governed. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution. Constitutions define the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially written constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights

Originalism:  is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment.

Living Constitution:the claim that the Constitution has a dynamic meaning or that it has the properties of an animate being in the sense that it changes.