The Hidden Truth

October 26, 2025

By Stephen Stofka

In a courtroom, a witness takes an oath to tell the truth, the whole truth and nothing but the truth. Can a person tell the whole truth? What is the whole truth? Since the Middle Ages, the courtroom oath has many versions in English common law (Source). The whole truth meant that a witness would not leave out some contextual fact that would alter the significance of the facts they had presented. In a 1973 Supreme Court case, Bronston v United States, the court held that a witness could not be accused of perjury for an omission (Source). Lawyers have the responsibility to question the witness to clear up any suspected omission of fact in their testimony. Despite the wording of the oath, a non-expert witness states descriptions of events, or personal observations, but not the truth.

This week I want to investigate two axes, truth and power and their interaction, which is justice. In response to questions, a witness tells a series of descriptions. Each member of the jury, and all those in the courtroom form several conclusions based on those descriptions. But conclusions are not truth. There has to be a connection between us and that set of descriptions to arrive at truth. Facts and descriptions are objective, something that some people can agree on. Truth is personal. We feel the truth.

The Declaration of Independence states that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (Source). While Jefferson is often credited with the sentiments expressed, he said he was only writing down what others at the 1776 convention had agreed on. In her book These Truths, historian Jill Lepore (2018, p. xv) writes that Jefferson’s first draft read “We hold these truths to be sacred and undeniable,” implying that these truths were God-given. Benjamin Franklin scratched out the words that Jefferson wrote and wrote “self-evident” to convey a more secular meaning.

The Declaration, written in 1776, was designed to win sympathy and material support from other European nations. The truths expressed were aspirational. The Constitution, written 11 years later, was operational. The first ten amendments, the Bill of Rights, guarantees neither life, liberty nor the pursuit of happiness. The Fifth Amendment simply prohibits the federal government from taking one’s life, liberty or property in a criminal case without due process of law. The Fifth contains protections, not rights. A person who had neither liberty nor property had nothing to take. The federal government had no obligation to provide for any of these rights declared in the Declaration. After the Civil War, the Fourteenth Amendment extended these prohibitions to the states (Source).

Are the truths of the Declaration like postulates? A postulate is a claim that forms the basis for further reasoning. In Euclid’s system of geometry, the second postulate states that a line can be extended indefinitely (Source). From that we reason that there are an infinite number of points on a line. A postulate is not a truth. It is not even a fact. It is a convenient claim, a foundational pillar of consensus.

When we argue the truth of our claims, we often treat our beliefs as postulates, and our arguments are logically developed from our postulates. Is a statement of belief a truth? We often label such statements as truths. We may wield a belief as though it were Excalibur, the Sword of Truth. Our beliefs are valid and important. If your beliefs don’t agree with mine, your beliefs are wrong. I may explain the error of your thinking so you can correct your beliefs and live a long and fruitful life. Fat chance, you say.

There are supernatural truths, those that are revealed in the Bible, the Koran or other sacred texts. Believers claim that the words in this books originated in some manner from outside the natural world. Thomas Aquinas was a Catholic priest who tried to reconcile the works of the Greek philosopher Aristotle with the traditions and tenets of the Catholic faith. He introduced natural theology, a philosophical approach which arrived at truths by observing the natural world (Source). Although Aquinas did not use the term moral compass, his believed that all of us have a natural good, an innate sense of what is right because we are products of a perfect God (Source).

Is our moral sense innate? It’s the nature vs nurture argument. How much is nature? How much is nurture? Developmental psychologists have largely concluded that it is both but disagree on the influence of each on our moral development (Limone and Toto, 2022). Natural selection has favored individuals who are more able to cooperate within a social group. Even small children exhibit a sense of right and wrong. As each individual grows, we develop a more complex morality because our biology enables us to incorporate the lessons of our social environment. These truths as we know them shape our moral sense, which influences our sense of justice.

Justice is the intersection of truth, morality and power. We see the injustice in others, but not in our own actions. We see the mote in our brother’s eye but not the beam in our own eye, as the Bible says. Those who are in a dominant social group see the flaws in a minority group as a justification for their dominance. The notion of “speaking truth to power” originates with a 1942 letter from Bayard Rustin about social justice. The phrase became the title of a 1955 Quaker treatise on pacifism (Source). The notion implies that the speaker has less power, for power can be its own truth. Political power is the imposition of a set of truths on a people. In a democratic or republican ideal, the people or their representatives help shape the truths of power. In an autocracy, the ruling elite impose their own beliefs and rules on the people they govern.

The law does not resolve the tension between morality and power, for there are many unjust laws. We can not agree on what is a just and unjust law because each of us has a unique sense of morality. Even if we do have similar beliefs and experiences, we synthesize them differently. In a raw “state of nature,” as the 17th century philosopher Thomas Hobbes called it, there is no authority or government. Each individual or small group acts in it own self-interest and for its own survival, much like the animal kingdom. Hobbes called it a “war of all against all.” Power becomes its own truth, a truth that cannot endure because power does not endure. In human societies, we surrender some of our freedom to a governing authority in exchange for some sense of security. Hobbes’ arguments were meant to justify autocratic rule, but liberal philosophers like John Locke adapted those arguments to support democratic rule.

Hobbes “state of nature” is very much present in international relations, a system of anarchy where no country submits to a higher authority. The subject requires more space that I can give here. There are two main theories, realist and liberal. Realists emphasize the competition for survival similar to Hobbes viewpoint. Powerful nations like China and the United States Nations try to dominate their regional sphere of influence. Nations cooperate when it is their self-interest and to balance threats to their interests. For a minor country, alliances and diplomacy are the chief tools of survival. If they possess nuclear weapons, they are like a porcupine. For a powerful nation like the United States, there is no enforcement of international rules.

The liberal theory stresses interdependence between countries. International organizations like the UN and the World Trade Organization provide a framework, a set of rules for cooperation between states. These institutions can overcome the inherent anarchy of international relations. The liberal theory has a much more optimistic view of human nature.

Human beings long for eternal truths, something that is always true like two plus two equals four. We long for a lasting security as well. The first casualty of war is truth, the aphorism goes. The second casualty might be justice. We dream of a world where states negotiate and compromise rather than fight. Hidden among the many truths of our lives is a desire for peace.

/////////////////////////

Photo by Arturrro on Unsplash

Breyer, S. G. (2025). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Lepore, J. (2018). These truths: A history of the United States (First edition). W. W. Norton & Company.

Limone, P., & Toto, G. A. (2022). Origin and development of moral sense: A systematic review. Frontiers in Psychology, 13, Article 887537. https://doi.org/10.3389/fpsyg.2022.887537

Honesty

October 19, 2025

By Stephen Stofka

ChatGPT was released just three years ago and AI technology has been widely adopted by the public. Some high school students use AI programs to write their college admissions essay. These essays are easy to identify and may affect a student’s chance of acceptance (Source). The AI detection tool Turnitin, used by many colleges, has identified some AI text in millions of students’ papers (Source). What’s the concern? Students are judged on their efforts, not the efforts of OpenAI, the company that developed and trained ChatGPT. In this context, misrepresentation is dishonest. The issue is not AI, but honesty. This week I want to explore the axis of honesty and dishonesty. My second axis will be personhood, whether an entity is regarded as a person or not.

Dishonesty is a master of disguises. Sometimes we are dishonest to protect our privacy. A company asks for a phone number and we give them an old one or make up a number. We are dishonest to avoid embarrassment. We use dishonesty as a social grease, smoothing out uncomfortable interactions. We call them white lies. Parents struggle to explain to their young children the difference between a bad lie and a white lie. An older child, perhaps eleven or twelve, will argue with us over our criteria.

Politicians use dishonesty as a political grease to ease out of an uncomfortable or embarrassing set of circumstances. Corporations are dishonest for the same reason. They may be protecting trade secrets or disguising their real intentions from competitors. A company may announce the launch of a new product that they know is not ready to ship. They hope to attract more investment or dissuade competitors from entering that particular market. In 1985, a company called Ovation introduced a new suite of office software with a fake demonstration of its capabilities, even though the software was still in early development. The company hoped the demonstration would attract investment (Source). Esther Dyson coined the term “vaporware” to describe such products.

Some of us don’t respect corporations in general, but most companies have to operate with some degree of honesty. They have to supply a consistent product or service to retain current customers and attract new customers. They must meet their customers somewhere in the distance between the company’s needs and their customers’ needs. A corporation may behave like a ruthless profit machine at times but it not a robotic machine like an LLM.

Corporations are steered by people who act with intention. An AI makes connections between patterns of what appear to it as binary digits. We recognize the mistakes that AI programs make as hallucinations because we regard an LLM like ChatGPT as a machine, a tool. It has no intention, no driving force other than electricity. Its resources, the electricity, the chips and the digital storage, are given to it. If an AI appears to act with intention, it is because people imbue it with intention. My cordless drill just turns. It has no intention to make a ¼” hole in a wood panel. I am the one who transforms the turning of the drill into a hole.

Neither an AI nor a corporation are biological entities, yet the Supreme Court has ruled that corporations are persons. The issue first arose shortly after ratification of the 14th Amendment, which granted equal protection under the law to “persons.” In an 1882 Supreme Court case, San Mateo County v. Southern Pacific Rail Road,  Roscoe Conklin represented the defendant in the case, Southern Pacific Railroad. Conklin was a former Senator and the last living member of a Congressional Committee that had drafted the 14th Amendment. He informed the Court that the drafting committee had changed the word citizen to person to include corporations under the Equal Protection Clause of the amendment (Source).

In her book These Truths: A History of the United States, historian Jill Lepore (2018, p. 338) writes that Conklin was probably lying. Other evidence during the drafting of the amendment doesn’t support Conklin’s claim. Adam Winkler (2018), the author of We the Corporations, recounts the history of the corporate rights movement and concurs with Lepore. However, the Court made reference to that claim in another case four years later. In subsequent 20th century cases, the Court granted that corporations were artificial persons, but persons nevertheless for the purposes of the Equal Protection Clause (Source). That precedent was the basis for the Court’s decision in Citizens United giving corporations free speech rights. The court ignored any evidence that Conklin was lying because the conservative justices on the Roberts’ court fancy themselves to be very knowledgeable in both history and the law.

Conklin’s deception illustrates the fact that dishonesty can be an effective strategy to achieve one’s goals. In Conklin’s case, the likelihood of a favorable ruling from the court led to a settlement. Dishonesty as an effective strategy is only possible if we can anticipate the response to our dishonesty. We have to put ourselves in the mind of our audience, a difficult task for a young child, who may be befuddled when challenged over a ridiculous lie. “You didn’t do your vocabulary homework because it got wet in the rain. How is that possible? It hasn’t rained today.”

Animals may exhibit displays that misrepresent their size, or the direction they are facing but we don’t regard animals as dishonest. Many animals, particularly males, resolve disputes with aggressive displays that threaten violence to their opponent. Often, the display itself resolves the problem. One animal backs down out of concern for their own self-preservation. A display rather than an actual fight conserves energy.

Politicians lie so often that the public may be partially desensitized. But the police can lie as well? In a 1969 case Frazier v Cupp, the Supreme Court ruled that police can, in some circumstances, mislead a suspect to elicit a confession (Source). According to Standard 3-1.4 of the Criminal Justice Standards, a prosecuting attorney “should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true, to a court, lawyer, witness, or third party, except for lawfully authorized investigative purposes” (Source). Notice that law enforcement are bound by a negative. They “should not.” As the American Bar Association says, the word should is aspirational.

In court a lay or expert witness must take an oath to tell the whole truth. They are bound by a positive law that is not aspirational. Why the different standards? A prosecuting attorney is not supposed to give evidence. That is the duty of a witness. However, it can appear that there is a lower standard for law enforcement. This creates distrust of the police and the prosecuting attorneys that represent the government. Cynical public opinion might reason that the job of law enforcement is to get a high conviction rate in order to be an efficient use of taxpayer money. Their job is not to tell the truth. This raises another issue. Do our expectations of honesty vary with the role that people play?

I do not expect my friends to be honest in a Friday night poker game. I do expect them not to cheat. We make a distinction between honesty and cheating. In poker dishonesty is a guarding of private information, the value of the cards in my hand. The government sometimes plays a form of poker with the public. Accused of hiding information, a government official will claim that there are security concerns. The information may reveal incompetence, or poor decision making and the administration wants to protect its reputation. An opposing political party might use the information to sway public opinion in an upcoming election. Is the government cheating?

The Freedom of Information Act was passed in 1966 and amended in 1974 after the Watergate scandal. The act applies only to federal agencies. Each state has its own open records procedures. A media outlet first files a request for information from a U.S. government agency. If the agency refuses the request, the requester can file an appeal with the agency. If the agency denies the appeal, then the requester of the information can sue the agency in a U.S. District Court (Source). As in a poker game, the requester must expend both time and effort to access the information. Sometimes the government redacts a lot of the information contained within the released documents (Source).

There are also instances where government agencies are required to not release information  which would interfere with the pricing mechanisms of the stock and bond markets. The Federal Reserve has a blackout period of about ten days before an FOMC meeting to determine interest rates. Here is a link to this year’s calendar. During this period, Fed officials do not respond to policy questions from the media so as to not create expectations that might influence the market.

The Bureau of Labor Statistics safeguards the information in the monthly labor report before releasing it at a specific time, usually on the first Friday of each month. Some employees at the White House are advised of the data before its release so that they have comments prepared in advance (Source). In 2018, Trump moved markets when he tweeted a hint at the numbers in advance of the official release time (Source). In this case, a violation of the rules had the same effect as cheating. Trump has also been accused of fudging his golf handicap (Source). The President may regard both dishonesty and cheating as effective strategies to reach his goals, but I would not play poker of golf with someone who had that attitude.

When governments or corporations hide information, we may call it dishonesty, or a lack of transparency. Which is it? The label depends on the label maker. If we are hostile to the policies or actions of a particular government, we may label that dishonesty. Someone who is more neutral might label it a lack of transparency. Someone who favors that policy, party or government may speculate that there must be a good reason.

As it turns out, honesty is not easy to objectively identify in many everyday circumstances. I underline the word objectively. Even when we identify dishonesty, our reaction to it may be rather benign. We create judicial institutions and procedures to help unravel the subjective perceptions of honesty in a particular circumstance. In court we ask juries to evaluate the honesty and credibility of testimony. Unlike honesty, we have left the determination of personhood to a few justices on the Supreme Court and a footnote mention of corporate personhood in an 1886 case. Why do we treat these two concepts differently?

//////////////////////

Photo by Phạm Trần Hoàn Thịnh on Unsplash

Lepore, J. (2018). These truths: A history of the United States (First edition). W. W. Norton & Company.

Winkler, A. (2018). We the corporations: How American businesses won their civil rights. Liveright/Norton.

The Political Middle

October 12, 2025

By Stephen Stofka

In the past few weeks, I have focused on the progressives and conservatives, two groups that have opposite ideologies regarding the social order. This week I will look at those ideologies that lie between those two extremes. First, let’s look at degrees of equality, a key characteristic of political ideologies. I’ll start with the extremes.

Progressives believe in the goal of an egalitarian society where everyone is equal in rights, resources and opportunities. The justification for that goal is a belief that all human beings have an intrinsic moral worth that is equal, a spirit embodied in the Declaration of Independence (Source). Inequality is a defect in the political, social and economic institutions that must be modified or expunged. Progressives thought that the equality promised by the Declaration of Independence and guaranteed by the 14th Amendment were intrinsically linked to economic equality, job opportunities, and pay equality.

Conservatives reject this approach. People of many persuasions, religious or secular, cringe at the claim that Mother Teresa and Hitler had the same moral worth. Despite the separation of Church and state in the First Amendment, the principles of the founding generation were built on conflicting religious beliefs. Some Protestant Christian sects believe in predestination, that God has chosen the saved and unsaved. Many Southern Baptists and Presbyterians, numbering almost 16 million in the US, cling to that doctrine (Source, Source). Others within the Protestant tradition are Arminian, believing that people can redeem themselves through faith. Catholics take a more nuanced view that faith, God’s grace, and good works can help a person attain salvation (Source). Each of these religious traditions focuses on the individual rather than the institutional environment.

Edmund Burke was an 18th century English philosopher, political writer and Parliamentarian who founded modern conservatism. In 1790 he wrote an essay Reflections on the Revolution in France that was highly critical of the overthrow of the aristocracy in the French Revolution. He wrote “all men have equal rights, but not to equal things.” He believed that societies evolved over generations to form a cohesive coalition of many roles occupied by people with different temperaments and talents (Source).

Burke had less faith in reason than Locke and worried about the disruptive force of people’s passions. Ruling institutions must “thwart” the “inclinations of man,” control their wills and subject their passions. Taking a broader perspective, Burke wrote, “In this sense the restraints on men, as well as their liberties, are to be reckoned among their rights.” That may seem curious. How is a restraint on me a right? Burke seemed to reason that a restraint placed with equal force on my neighbor may protect me from my neighbor’s passion. This viewpoint is rather utopian for restraints are not implemented equally on each individual. Those inequalities are the systemic defects that the progressives rightly criticize.

At either end of this axis of equality and inequality lie the Progressives and Conservatives. Let’s turn to the ideologies that occupy the middle between these two extremes. To the right of center there are classical liberals and neoconservatives. Neoliberals lie on either side of the center and liberals are to the left. Although neoconservatives do not have liberal in their name they evolved from classical liberalism with some important differences. Let’s start with classical liberalism.

The classical liberal tradition began with John Locke, a 17th century British philosopher. In Two Treatises of Government, he argued that people had natural rights given to them by God and that a government was bound to respect and protect those rights. Writing at the dawn of the Age of  Enlightenment, Locke argued that reason distinguishes human beings from other animals (Source, p. 20). Reason was God’s gift to each individual to use in the pursuit of happiness and freedom (Source).

Because a person has a property right to their own labor, Locke despised the institution of slavery. In Two Treatises, he wrote “Slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it” (Source, p. 7) Behind closed doors in a courthouse in Philadelphia, some of the framers of America’s Constitution reviled slavery as well but could not convince southern slaveowners whose economic self-interest and social status trumped liberal principles.  

The Constitution did not include any protections for the property rights of women either. As the nation prepared to declare independence from Britain in 1776, eleven years before the Constitution, Abigail Adams, the wife of John Adams, wrote in a letter to her husband, “I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar care and attention is not paid to the Laidies we are determined to foment a Rebelion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation” (Source. Note: several decades later, Daniel Webster’s dictionaries helped standardize the spelling of many words).

The Constitution is intertwined with both progressive and conservative sentiments regarding equality and inequality. The document was a compromise after much argument. It is no wonder that we continue to argue over this central issue.

Like John Locke, the 18th century philosopher Adam Smith thought that the market helped rational people pursue their self-interest and advocated a limited role for government in the market. In business or in government, men were not angels. In the Wealth of Nations he criticized businessmen  who were prone to price fixing. In government, officials interfered with commerce, granting their allies monopolies on certain markets. In The Rise and Fall of the Neoliberal Order, Gary Gerstle (2022) writes that classical liberalism “sought to liberate markets from encumbrances: monarchy, mercantilism, bureaucracy, artificial borders and tariffs.” It wanted to “release the economy from the heavy hand of the state in its various guises” (p. 6).

Although libertarians champion the values and principles of classical liberalism, they disagree on the limits of government’s role in governing individual behavior, economic or otherwise. The accept the principle of equality, but reject the idea that government should take from some and give to others to achieve equality. Ardent libertarians regard such social taxation to be a violation of one’s property rights. Some libertarians advocate an extremely minimalist role for government in society. Others adopt a more practical approach that admits a more expansive role for government in a highly complex society and economy.

This sense of realism is shared with neoconservatives who argue that the role of government is to preserve moral order in a domestic society, and promote democratic principles and institutions around the world. Neoconservatives advocate both soft and hard power to combat the inherent anarchy of the world order. Contrast this darker outlook on human nature with Locke’s view that rational human beings are capable of self-governance.

Gary Gerstle (2022, p. 5) argues that the term liberal describes the version of social democracy that the Roosevelt administration introduced during the 1930s. Some call it modern liberalism to distinguish it from classical liberalism. During FDR’s presidency, the government exerted a far greater force in the market than previous administrations. At a time when 25% of working age people were unemployed and millions had lost their savings, FDR expanded government’s role to achieve more social and economic well-being.

In his first 100 days, FDR signed 99 executive orders to bring some quick relief to a nation suffering during the Great Depression. He did not act alone. In that time, Congress passed almost as many laws (Source), a partnership of the executive and legislative branches. In his second term, Trump has broken that record, signing 143 order in his first 100 days. However, Congress has been little more than a silent partner, quietly acquiescing as the executive assumes much of its legislative power. In the first 100 days, Congress passed only five laws, a stark contrast to the vigorous production of the 1930s Congress (Source).

During the 1960s, modern liberalism evolved to place far more emphasis on equality among members of society. Progressives wanted to use all the power of government to achieve an egalitarian society, a utopia of equality. In the 1970s, neoliberalism arose as a counterforce. Ronald Reagan, Margaret Thatcher, and economist Milton Friedman were right of center, placing little emphasis on economic equality. They believed that the market was the best mechanism to distribute the rewards and risks of individual behavior. They wanted to blend elements of 19th century classical liberalism with some social supports of 20th century liberalism like Social Security. Bill Clinton espoused a version of neoliberalism that was left of center with more emphasis on economic equality. His administration coupled government social welfare supports with individual effort and market incentives. In an ironic twist, Gerstle argues, the neoliberals used as much coercion to implement market reforms as the liberals had used to achieve a more equal distribution of economic gains (p. 7).

Our political loyalties may shift with age, sometimes with circumstance. Many of us do not cling to a consistent political ideology on every issue. We may vary our emphasis on some principles. Our priorities and viewpoints change. When I was in my twenties, I was against Social Security. Like so many government programs, it was poorly designed from the start. Until 1960, the combined tax share for both workers and employers was less than 6%. By 1980, the combined tax had doubled to 12% and the program was still running out of money (Source). In my view at that time, retiring workers had paid relatively little and were “milking” the younger generation. We had to keep paying higher Social Security taxes at a time when inflation was more than 10%. Some of us struggled to pay rent and feed our families so that we could pay some stranger’s retirement benefits.

Regardless of ideology, each of us has a unique sense of what is fair. That is true north on our moral compass and we act on that. That needle may sometimes point to the left or right on an issue or a candidate. No matter how pollsters and political analysts categorize our beliefs, we have only one political ideology, the Fair ideology.

////////////

Photo by Tomoe Steineck on Unsplash

Gerstle, G. (2022). The rise and fall of the neoliberal order: America and the world in the free market era. Oxford University Press.

A Crossroads of Judgment

October 5, 2025

By Stephen Stofka

First, let’s explore the conservative – progressive axis. I left out the category of liberal, an umbrella term that captures political ideologies to the left and right of center, depending on the writer or speaker. In my mind, a key characteristic of centrist liberalism is a presumption of “live and let live.” I will discuss that next week. For now, I will use conservative to describe those who are socially and economically conservative. A progressive is the opposite.

A conservative recognizes formal or informal social and economic classes in society. A progressive regard classes in society as an aberration, a fault in the ideal of an egalitarian society. A conservative believes that government institutions should make small and gradual changes to optimize society’s welfare. A progressive believes that institutions should take aggressive action to correct the economic and social problems that diminish individual welfare and the society as a whole.

Let’s pick a spot on our map, the intersection of a conservative who regards the Constitution as dead. This was the approach of Justice Antonin Scalia who died in 2016. As I wrote last week, Scalia championed a form of originalism which Jack Rakove called “public meaning originalism” (Source). In her concurring opinion in U.S. v Rahimi, Justice Barrett noted the two foundational premises of originalism. The first was “the meaning of  the constitutional text is fixed at the time of its ratification” (Source). The second premise was that the history and tradition at the time of ratification is more authoritative than later history. The Constitution is dead. A justice’s task was to understand the public meaning of the text when the Constitution was written and ratified. Later on, I will discuss Justice Jackson’s challenge to this textual analysis.

Scalia authored the majority opinion in District of Columbia v Heller (2008). In Heller, the Court held that the Second Amendment represented an individual right to carry a firearm. The amendment reads “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.” Scalia read the first half of the amendment as a prefatory clause subordinate to the main text granting individuals the right to bear arms (Source). This reading of the amendment contradicted more than 200 years of judicial interpretation, holding that the bearing of arms was defined, or circumscribed by an individual’s militia duty. Scalia ignored the several briefs written by noted historians that disagreed with his interpretation. Not only had the Courts understood the amendment that way, but states and localities had enacted many gun laws in the 18th, 19th, and 20th centuries. This clearly demonstrated that the public understanding of the amendment was that the right to carry arms was not an individual right. Scalia regarded his Heller opinion as a major achievement of his time on the bench (Biskupic, 2009). With co-author Bryan Garner, Scalia (2012) wrote a book defending his reasoning against many criticisms.

Back to the map and imagine a progressive who viewed the constitution as dead. In oral arguments in a 2023 Second Amendment case U.S. v Rahimi, Supreme Court Justice Jackson questioned the methodology of the “text, history and tradition” approach (Source). We regard domestic abusers as “dangerous” and subject to disarmament regulations, she noted. Those in the founding era, writing laws for a select few property owning men, did not regard abusers as dangerous. Should justices use the current meaning of “dangerous” or the public meaning of the word when the Second Amendment was written? There are a variety of answers to that question and this helps us understand why there were so many separate opinions written by the concurring justices in the Rahimi case.

Let’s turn to a conservative and progressive stance on a live constitution. A conservative stance would be that of Justice Gorsuch in the case of Trump v United States. A federal grand jury indicted Trump for his attempts to overthrow the results of the 2020 election (Source). It was the first time that a former President had been indicted on criminal charges. Although an originalist, Gorsuch looked to the consequences of the court’s decision. In oral arguments, he said “I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” He continued that the court was “writing a rule for the ages” (Source). This pragmatic approach is more typical of a justice like retired Justice Stephen Breyer who wrote that he gave greater consideration to the consequences of a particular judicial interpretation (Breyer, 2024, p. xvii). While Scalia largely ignored consequences in writing the Heller opinion, Gorsuch and other conservatives on the bench did consider the consequences in this case. The goal of the originalist methodology was an objective method of judicial interpretation that left policymaking to the other branches, not the judiciary. However, justices must make choices and judgment calls that affect the analysis and conclusion. Judges make policy. It comes with the job.

Lastly, a progressive is at home with a live Constitution just as Scalia was with a dead Constitution. Breyer paid attention to the text, but particular attention to the purpose of a statute Is the Constitution a contract between a government and the people it governs? A contract is an ongoing relationship of mutual responsibility between the parties to a contract. The keywords here are ongoing and mutual. The document itself, the declaration of the powers and limits of government, occurred at a particular time in history. However, it created an abiding covenant between the government and the people. The Constitution is very much alive.

Both progressives and conservatives use their interpretation of the Constitution as a compass point in their reasoning. The Constitution was ratified but the debate over its meaning was never resolved. Justice Breyer wrote that the tension between the two sides created an uneasy balance of interests and values. It is the duty of each generation to carry on that debate with words, not guns.  

//////////////////

Photo by Einar Storsul on Unsplash

Biskupic, J. (2009). American original: The life and Constitution of Supreme Court Justice Antonin Scalia. Farrar, Straus and Giroux.

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Scalia, A., & Garner, B. A. (2012). Reading law: The interpretation of legal texts. Thomson/West.