I had a discussion recently with a friend over whether certain Constitutional statements had the same meaning when written/enacted as they do today.
The first answer we want to say is “of course the meaning of Constitutional statements is exactly the same as in 1787.”
We don’t want the applications of Constitutional guarantees to change, because the Constitution is fixed. The only way to change the Constitution is through the amendment process (28 times so far, once to fix a major mistaken amendment, others to enact new rights or to amend earlier amendments) or through an Article V convention (a method so rare as to have never yet been done). The law is king, and we can’t change the king without a significant and disruptive process.
However, while the meaning of the Constitutional principles might be fixed, their meaning and application is not.
We do not limit the right to free speech to include only spoken speech, for example. Written speech in the form of electronic texts is arguably “speech.” Freedom of the press doesn’t cover just paper printed using 18th century technology, and doesn’t cover just the owners of the press, but also is applied to the nebulous title of “journalist.” Freedom of religion doesn’t mean “free to believe any Protestant Christian religion” (a meaning the amendment never had, by the way), but means “freedom to believe or not believe as you will, with no greater or lesser privilege in any aspect of secular society.”
We started talking about the “right” to privacy, and what it meant when we talk about the interactions of police with the general public. Does the “right” to privacy apply to the interactions on a public highway between the public officials serving as the police and publicly licensed drivers of publicly registered vehicles?
There’s an interesting set of things to think about. Passengers and 3rd parties not part of the traffic stop might not have a say in the public release of any recordings between the LEOs and the driver, for example. LEOs, serving as public officials on a public highway where they can be recorded by anyone, cannot necessarily demand that a recording from the police dashcam be automatically suppressed from public review. Journalists might demand to see such recordings, and private drivers stopped by LEOs might have private matters revealed in a public recording.
It was an interesting discussion because it brings up the idea of “how do we define ‘privacy’ in an age where nearly everything we do can potentially be recorded and reviewed by 7 billion people?”
It’s gonna be interesting to work this out. We’ll have to figure out whether the “right to privacy” includes the right to never be recorded without our consent. We’ll have to figure out what “consent” means. We’ll have to figure out whether a business can sell our private records to 3rd parties (e.g., advertising based upon our common geolocations as reported by our cell phones).
It’s complex, and it might not be entirely resolvable—but I think we can make a good stab at having a fruitful discussion.
And it led me to think about other Constitutional statements that have diverse interpretations.
We got to talking about the Constitutional direction that the Constitution itself is a directive for the government to “promote the general welfare.” What does that mean in a rich, 21st century America as compared to a hard-scrabble third-world colony in the 18th century? Should a rich, diverse America of the 21st century see this directive as adding more to what it does in providing for the general welfare? Or should the limited abilities of the 18th century America be the limits on the distributions of the blessings of liberty?
If we’re going to be a Constitutional nation, we’re going to have to have this discussion, frequently, and we’re going to have to figure out whether we want 18th century implementations to be the restrictions in place for the 21st century.