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Two principles guiding the Supreme Court are original intent and precedent. Did the Founding Fathers really intend the second amendment to guarantee the private ownership of arms, unimaginable to them in power and destructive potential?
The Founders gave hint to their intent by the phrase, "a well regulated militia, being necessary to the security of a free state.
"Well regulated" implies control and supervision. What does the security of a free state entail? Certainly not a local militia laying down their farming tools and rushing to gather their muskets to protect us against foreign enemies.
The Founders did not mention the right of self-defense so broadened recently in today's "stand your ground" laws.
Clearly those who proposed the Fourteenth Amendment intended to confer the rights of equal citizenship upon the former slaves and their descendents.
Yet, for a century the Supreme Court ignored that intent allowing a system of racial segregation with the backing of law in many states but accepted corporations as citizens under the law and, therefore exempt from regulations by the states.
Recently, the Court adopted a ruling in the case known as Citizens United that corporations as citizens are allowed unrestricted contribution to political campaigns.
Either side of a contemporary controversy will invoke original intent without knowing the original intent of the framers and whether the framers anticipated today's conditions.
Precedent derives from the desire to keep a contemporary Court from giving way to the pressures of a passion of the moment, to allow it to claim legitimacy for a decision by continuity with the past.
Minority arguments can be important in that if a past decision is reversed, often a minority argument has anticipated the decision later taken by the majority, that is, the new majority decision for reversal did not just come out of the air.
The Plessey v. Ferguson decision of 1896 upheld segregation by race. A famous dissent by Justice Harlan became part of the basis for reversing that decision in Brown v. Board of Education in 1954.
The Court is reluctant to rule a law passed by Congress unconstitutional for fear of violating separation of powers and usurping the legislative power of Congress.
That may have played some role in Chief Justice Roberts's vote to uphold the Affordable Care Act.
Congress did enact the bill into law and the president signed it. Now the fate of the law depends upon the vote of the people in November and subsequent actions of the Congress and president elected in November.
Conservatives were counting on Roberts to be one of five votes to strike the law down and have vilified him.
The Affordable Care Act thus derives the benefit of precedent and its opponents must acquire power in the legislative and executive branches to have their way.
Justice Oliver Wendell Holmes, an Associate Justice from 1902 until 1932, said, "The life of the law has not been logic, it has been experience."
He exposed the hypocrisy in the resort to Framers' intent and precedent implying that judges have played fast and loose with intent and precedent to argue positions derived from their own experience.
During her confirmation hearing, Justice Sotomayor suggested that background and experience should influence the decisions of a justice. She was implying that as a woman and a Hispanic she might offer something special to the Court's deliberations.
This alarmed white, rich formally educated men accustomed to the Court's being dominated by white, rich formally educated men.
If the Court is to command public respect, it cannot issue a series of 5-to-4 decisions in controversial cases along partisan and ideological lines.
This concern played a significant role in Chief Justice Roberts's ruling in the Affordable Care Act case.
He sought a 6 to 3 majority, but Justice Kennedy would not go along.
Controversial decisions of the John Marshall Court and the Earl Warren Court had the force of unanimity.
Justices cannot sail off into uncharted seas unrestrained by the winds of public opinion, or the anchor of precedent, or the stabilizing rudder of original intent.
Neither can we continue with a Court that is the mere spoils of electoral victory.
Chief Justice Roberts made a courageous decision good for the Court and the country.
Daniel C. Hudson is a resident of Ridgefield.
