Free Making Our Democracy Work by Stephen Breyer Page B

Court do? Create historical “assumptions” designed to draw answers from a historical void? Or refuse to answer a question of practical importance (for example, involving fair trials for those accused of murder) on the basis of a skimpy, uncertain record of eighteenth-century practice? If the Court is to decide major constitutional questions on the basis of history, then why not ask nine historians, rather than nine judges, to provide those answers?
    Moreover, even when faced with major historical questions, historians can disagree. For example, the Second Amendment says that 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.” Does a local law prohibiting handgun possession violate this amendment? Over the years historians have filed briefs in the Court tracing the amendment’s history, but they often disagree about the significance of different pieces of historical evidence. How should the Court treat this kind of disagreement? In 2001 historians awarded the coveted Bancroft Prize to a professor whose book purported to prove that few eighteenth-century Americans possessed firearms. That fact made it unlikely that the Second Amendment was written to protect handgun owners. Yet after investigation cast doubt on the prizewinner’s data, the historians, in 2002, took the prize away. 3
    Nor does historical clarity about how the framers believed the provision applied in the eighteenth century always tell us whether or how they thought it should apply in the future. We can be certain that the framers intended the word “two” in the phrase “two Senators from each State” to have a single, fixed reference over time. But we cannot be so certain about the scope of the word “commerce” in the Constitution’s grant to Congress of the power to “regulate Commerce … among the several States.” Indeed, in all likelihood the framers intended the scope of that word to expand, covering more and more items, as commerce itself expands, as technology advances, and as commercial activities in one state increasingly affect those in another. 4
    Consider, too, the Fourteenth Amendment’s equal protectionclause—the clause that forbids states to deny any person “equal protection of the laws.” Those who wrote this clause in the 1860s knew that segregated schools existed at the time, even in the federal District of Columbia. Suppose they believed that enactment of the clause would
not
require integration of the District’s then-segregated schools. Must we then follow those beliefs, say in 1954, when the Court decided, in
Brown
, that the clause forbids segregated schools?
    In 1954 the Court did not stick to what the authors of the clause might have thought in this specific respect in the 1860s. By 1954 it had become clear that racial segregation, including school segregation, had denied minority groups the very equality that the clause sought to assure them. And the Court concluded that the authors of the clause would have preferred an interpretation that furthered its vital broad objective (that is, assuring equality) over an interpretation based on a particular factual belief (that school segregation was consistent with equality), which, if respected, would have subverted their more basic egalitarian purposes. Thus, we find an answer to the legal question at issue in
Brown
by applying not particular historical beliefs but the
values
that underlie the equal protection clause. We apply those values to the circumstances of segregation as they existed in 1954. We can reasonably believe that the authors of the clause would have approved our doing so.
    Even if originalist answers were easy to uncover and free from historical ambiguity, I doubt that following the originalist approach could help maintain public support for the Court as an institution. After all, the framers could not have been aware of the automobile, television, the