But, they were not Gods or prophets who could see into the future and know the nature of society for all time. Every time I hear someone like Justice Scalia or Thomas defend a decision by stating that it was "the intent of our founding fathers" I want to jump up and say, "How can we believe that a few brilliant men sitting around in knickers and wigs over two hundred years ago can know what is right for a society that bears no relationship to the one they lived in?"
Being human, at times I believe they were a little careless and perhaps too tired to edit everything they wrote. For example, here is the second amendment.
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.
Second amendment advocates choose to ignore the first part and treat the second amendment as if it read, "The right of the people to keep and bear Arms shall not be infringed." If that is what they meant why didn't they say it? Many of us believe that it was getting late, much ale had been drunk and they did not remove the ambiguity. We believe they meant to say, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms for that purpose shall not be abridged."
But that is not the point I want to make. The militia, at that time, was made up of individuals who owned guns and were ready to jump into action. The president or a governor does not call out a militia of farmers and storekeepers today. The National Guard might be called out when an emergency arises. The concept that the founders had in mind is passÃ©. We live in a different time than of those great guys in knickers and wigs. Thomas Jefferson knew that the founders' ideas would need many amendments.
Here is something he said:
"Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves were they to rise from the dead." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:40
He also stated, perhaps with tongue in cheek realizing the impracticality, thatevery twenty years laws should be thrown out and rewritten to accommodate the needs of the time at hand.
Worst of all, had not there been a civil war Justices Scalia and Thomas would be stating that it was the intent of the founding fathers to permit slavery in the southern states. The best they did was to pass a law that stated that in twenty years there would be a cessation of slave trade- not slavery, mind you- just trade. They treated slavery as if it was a political bargaining point and left it to the blood of many thousands to settle it once and for all.
Just think what would have happened if the automobile had already been invented. An amendment to the Constitution might read: The right of the people to own and drive an automobile shall not be infringed. Henceforth, no state can deny you a license to drive a car.
We live in the age of communications. We have had the industrial revolution after the founding fathers were all gone. We need a Congress responsive to this new environment and we need a Supreme Court that rules according to the needs of the people in our society. Let us honor those guys in knickers and wigs but let us also recognize that we have evolved into a much different society that the one they knew.