Gettysburg Connection is pleased to share the opinions of Adams County residents. This article is an opinion piece (op-ed) that represents the opinion and analysis of the writer. The views expressed do not necessarily reflect the opinions or views of Gettysburg Connection or its supporters. We'd love to share your thoughts. Please leave a comment below or email us: mail@gettysburgconnection.org.

Hear ye, hear ye! (Dis)order in the Court!

Americans’ confidence in the Supreme Court has dropped sharply in recent years to the lowest in Gallup’s nearly 50-years of polling. Even before the Court’s recent decisions, only 25 percent of U.S. adults have “a great deal” or “quite a lot” of confidence in the Supreme Court. It was 50 percent as recently as 2002. Many institutions suffered a decline in confidence, but the drop in confidence in the Supreme Court is roughly double that for most institutions that experienced a decline. Several recent decisions by the Court – on environmental protection, presidential immunity, expanded gun rights – do not reflect the opinions of most Americans.

How should the Court interpret the Constitution when considering cases before them? There are several options. One is Originalism, or Original Intent. Originalists believe the meaning of the Constitution is determined solely by the words of the Constitution at the time it was adopted. They think they should interpret the Constitution by intuiting how the Framers intended it to be interpreted, arguing that the Constitution should be read as it was originally written, rather than being reinterpreted to fit the changing needs of society. That seems to be the thinking of three of the nine current Justices (Article III of the Constitution does not specify a number).

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But who were the Framers? They were mortals whose experience shaped their vision and whose interests affected their judgement.

The Constitutional Convention opened in May 1787 with 55 delegates from 12 of the original 13 states (Rhode Island’s leaders refused to participate, believing it a conspiracy to overthrow the established government). Only about half of the delegates took part in the debates. During the 17 weeks it lasted, at no time were more than 11 states represented. An average of only about 30 delegates were in attendance; 19 delegates were absent for two weeks to almost the entire Convention.

Their disagreements required the Framers to make compromises if they were to draft a constitution all could support and that would win popular acceptance. There is no group meaning of this or that paragraph of the Constitution; there are, however, writings by some delegates expressing their disagreements even with the final product. For example, Gouverneur Morris, a delegate from Pennsylvania, wrote, “It is not easy to be wise for all times. Not even for the present much less the future, and those who judge the past must recollect that, when it was the present the present was the future.”


The main argument against Originalism is that the Constitution is often unclear or ambiguous; it can become stale and irrelevant to modern life if viewed only through 18th century eyes. We in the 21st century have more than 200 years of history and legal precedent to look back on; we are modern individuals with as much difficulty thinking like 18th century people as 18th century people would have had trouble thinking like us. Morris also believed that the Constitution would be able to adapt to the changing needs of the country: “The Constitution we have proposed is not a straitjacket. It is a flexible instrument that can be adapted to the changing needs of the country.”

Thomas Jefferson wrote, “The dead should not rule the living…I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

Justice Marshall, Chief Justice of the Supreme Court from 1801 to 1835, summarized the challenge the Court faces: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

George Washington said it best in a letter he wrote to his nephew several months after the Convention. “The warmest friends and the best supporters of the Constitution do not contend that it is free from imperfections…I think the people (for it is with them to judge) can, as they will have the aid of experience on their side, decide with much propriety on the alterations and amendments which shall be found necessary; for I do not think that we are more inspired – have more wisdom – or possess more virtue than those who will come after us.”

In a recent trial in Mississippi, U.S. District Judge Carlton W. Reeves remarked, “The Justices of the Supreme Court, as distinguished as they may be, are not trained historians…And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication [emphasis added].”

The Constitution itself recognizes the need for changes over time. Article V reads, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution…”

Mark Berg is a community activist in Adams County and a proud Liberal. His email address is MABerg175@Comcast.net.

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Mark Berg is a community activist in Adams County and a proud Liberal. His email address is MABerg175@Comcast.net.

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