My senior year of college I had a roommate, a graduate student in physics, who belonged to a small Christian denomination that held that musical instruments should not be played in church. No guitars or tambourines, no pianos or organs. These things were not mentioned in the New Testament.
My family home church, Lutheran, did not have regular guitar players, but it had an organ and a piano, and made use of both. I tried to reason with Ron, reminding him that cars and modern physics were also not mentioned in the New Testament—but I can see his shoulder shrug even now. Beliefs are beliefs, and precede logic and physics, even when they are held by those in a small minority Christians denomination.
I think of this when I hear Supreme Court justices summon the Second Amendment on gun laws. As many have pointed out, the framers had as much notion of machine guns and tanks as Matthew, Mark, Luke, and John had of automobiles. When writing the Second Amendment, the framers more than likely had muzzle loaders in mind. And maybe swords and sabres! According to one history source, “American Revolutionary Soldiers used a variety of different weapons including muskets, pistols, rifles, long rifles, knives, bayonets, tomahawks, axes, swords, sabres, pole arms and cannon.” If the founders thought citizens had the right to have private canons, they didn’t mention it—the apparent loophole through which the AR-15 is legal today.
The constitution was written before sonograms as well as machine guns, and although abortion—and women! as Justice Alito has pointed out, are not mentioned in the Constitution, the framers notion of it would have been built around the idea of “quickening.” That’s when a mother feels movement in the womb, and before the modern era the tangible admission of a successful pregnancy. Although various forms of birth control have been around for millennia, a human life’s arrival at the moment of conception does not appear in any historical documents that I know of.
In fact, while some seek to expand the current Supreme Court’s limits on abortion, even to the point of conception, a Florida synagogue has challenged its state’s own tightened abortion law on the basis of the First Amendment’s freedom of religion guarantee: “If a fetus poses a threat to the health or emotional well-being of its mother, at any stage of gestation up until birth, Jewish law not only entitles but requires the mother to abort the pregnancy and protect herself,” the suit argues.
The point is that one can get tangled up in all kinds of legal, moral, and medical arguments when trying to decipher what a group of white men thought the proper guidelines for an enlightenment-inspired new country might be almost 250 years ago.
Two of the most egregious moral omissions of those white men concerned women and African-Americans who were part of that first nation. It took decades of debate, a Civil War, and Constitutional amendments to give women and people of color the right to vote. The Supreme Court was not particularly helpful in these rights journeys, throwing up decisions like Dredd-Scott, which spoke to the tenor of the times and its economic leaders rather than notions of justice written into founding documents.
Omissions are one matter of Constitutional history, but it is a serious commission of racism leveled at the nation’s first inhabitants that might make Thomas Jefferson stutter and stammer if he had to defend his words today. They occur in the Declaration of Independence, which we celebrate on this July 4. The last of a list of 27 grievances against King George III, reads as follows: “He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes, and conditions.”
The “new” United States of 1776 held less than half of the country it occupies today. And although the British and Spanish still claimed huge swaths of North America, the country was still inhabited by, and governed by, hundreds of independent indigenous tribes, many of which already held treaties negotiated as independent “nations” with the Europeans. With the Louisiana Purchase and the Corps of Discovery, Jefferson would help set off a century of displacement, assimilation, and killing of the original inhabitants that would stretch the nation’s boundaries almost to their current positions.
Fortunately for Natives and for the Nation, a new revival of tribal cultures and the continuing contributions of individual “Indians”—so misnamed from Columbus through Jefferson—to the general welfare bely Jefferson’s words in the Declaration. In this case, the founders’ “originalism” will probably be recognized by all—including today’s Justices—as a popular but utterly biased, false, and self-serving belief of another time.
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