What if the Referees Don’t Follow the Rules? by Tom Reynolds
The Supreme Court is often described as split between Republicans and Democrats or between Progressive and Conservatives. In reality it is between “Originalists” and those who believe in “Loose Construction”.
The Originalists believe the Constitution means what it meant when it (and its amendments) were passed and can only be changed by further amending the Constitution. The Loose Constructionists believe that the Constitution can evolve and adapt to what justices believe is needed, without it being amended.
Amy Coney Barrett is usually classified with the Originalists while left wing justices such as Ruth Bader-Ginsburg are typically seen as Loose Constructionists. Barrett’s appointment is seen as tipping the balance on the Supreme Court to Originalists and putting an end to Loose Constructionist rulings as well as opening up the possibility of reversing some of the previous rulings of Loose Constructionist courts.
The 2nd Amendment is defended by Originalists and it is attacked by Loose Constructionists who want to supersede the Constitution, as written, with their own prejudices and biases.
Walter E. Williams, the John M. Olin Distinguished Professor of Economics at George Mason University, did an excellent job of simplifying this difference in a recent column. He compared the Constitution to the rules of football, each of which say what is permissible and what is not. Williams emphasized that, “a Supreme Court justice has one job and one job only; namely, that of a referee”. Their job is, “to know the rules of the game and to ensure that those rules are evenly applied without bias…enforcing neutral rules”.
Referees should be Originalists, according to Williams.
“Should the referees have the empathy to understand what it is like to be a perennial loser…? What would you think of a referee whose play calls were guided by empathy or pity?”
We’d call them Loose Constructionists and boo them vehemently.
“Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against one team” but not the other? “Would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule?”
Williams ends with a deeply inciteful guideline for constitutions and laws:
“what our society needs—the kind of rules whereby you would be OK even if your worst enemy were in charge”.
Wow! That idea exactly parallels what the Founding Fathers had in mind when they wrote the Constitution.
Our society should have rules that are evenly applied, known, and understood. All sides must play by the same rules; we can compete hard against each other but always within the same rules. If someone unfairly benefits by a rule, society can make a judgment and change that rule (or not), but until the rule is changed, justices must referee under the old rules.
With Amy Coney Barrett’s appointment to the Supreme Court, the 2nd Amendment should finally have a reliable majority in support of it, in the manner the Founding Fathers envisioned. The old rules will apply. Without this reliable majority, an evenly divided Supreme Court has been silent on the 2nd Amendment since the “Heller” and “McDonald” decisions, for fear that unreliable John Roberts might side with the other side. We should start to see 2nd Amendment cases being taken up by the Supreme Court, much to the dismay of gun grabbers everywhere.