11/19/10
''If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... 'The Social Network,' which I couldn't even understand,'' said Breyer.
For the originalists on the Court, led by Justices Scalia and Thomas, the answer is simple - if you want the Constitution to address changes in society brought on by modern technology, then you should amend the Constitution. Otherwise, it ought to be interpreted by its original meaning. The problem with that viewpoint is that the framers of the Constitution made it intentionally difficult to amend, and technology is moving faster than the law, as evidenced by the confusion some of the Justices had about technology while questioning counsel during oral arguments for City of Ontario v Quon. In the 223 years since the adoption of the Constitution, there have only been 27 amendments, and 10 of those came with the original. It has been amended and average of once per 13 years since then. 13 years ago, I didn’t own a cell phone. 26 years ago I didn’t have a computer. 39 years ago, VCR’s were a sketch in someone’s laboratory, and yet it’s likely that several of my readers don’t remember life without DVD’s - that’s how fast the world around us is changing.
Nor do we want the basic framework of our political and governmental systems to change with the breeze. As the Court reminds us in
Quon,” A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.” Much the same can be said about trying to amend the Constitution to reflect every change in technology.
Originalists and those that believe the Constitution is a living document will continue to shape the debate, both within and without the Court. I think we ought to take heed of Justice Breyer’s argument against trying to interpret the Constitutional in a purely historical context. “If you want to have history solve everything, let's get nine historians and not nine judges. And you'll discover that the nine historians are fighting about the various points on which these cases turn anyway.”
