October 5, 2025

By Stephen Stofka

Last week, I wrote about some of the themes in Jill Lepore’s recently published book We the People. This week I wanted to explore some examples using a type of mapping technique I used in The Intersection of Politics and Philosophy two weeks ago.A cartographer uses two axes, latitude and longitude to locate a position on the globe. A similar technique can help us understand human behavior and institutions. Again I will use the progressive and conservative ideologies on one axis as I did earlier. The other axis will be whether the constitution is alive or dead. I hope to understand some similarities and contrasts in ideology and interpretation.

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 18^th, 19^th, and 20^th 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.