Supreme Court finds history is a matter of opinions

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Justices rely more than ever on the idea of constitutional 'original intent' in ruling on cases this year -- yet their decisions are still split.


In 1985, President Reagan's attorney general, Edwin Meese III, criticized the Supreme Court's decisions and called on the justices to decide cases based on the "original intent" of the Constitution. The justices were wrong to rely on contemporary views of liberty and equality, Meese said; instead, they should rely on the understanding of those concepts in the late 18th century, when the Constitution and the Bill of Rights were written.

This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.

In doing so, however, the court has drawn criticism from some historians and legal experts who say the justices' readings of history were less than scholarly. And the justices sometimes disagreed sharply on the historical record, demonstrating that divining the original meaning of the Constitution is no small matter.

The term's two most important opinions -- on the reach of habeas corpus in the war on terrorism, and on the meaning of the 2nd Amendment -- trace the origins of the right to go to court and the right to "keep and bear arms" to 17th century England and Colonial America.

All nine justices agreed that the original understanding was crucial. However, they split 5 to 4 in both cases on how to interpret the history.

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David M Ward - 7/17/2008

yes there is.

Tim Matthewson - 7/16/2008

It doesn't take a rocket scientist to conclude that Americans in the first decade of the 21st century are deeply and sharply disagree about questions such as habeus corpus and the right to keep and bear arms. So why do people such as Scalia and others believe that people in the past, such as the 1770-1790s sharply disagree with one another about such questions. The advocates of "original intent" has always claimed that there was a consensus about such questions and spoke with one voice. Now it looks like there is a sudden dawning realization that "original intent" should perhaps be renamed "original disagreement" and that the people of the past were just as deeply divided as people are today, if not more so.