The conservatives tend to be literalists when interpreting statutes and regulations. There are judicial philosophy reasons for that, but also, statutes and regulations can be changed in response to court rulings. That said, the conservatives tend to be literalists from the perspective of the legislature or regulator at the time the law was enacted, though all the justices (conservative and liberal) recognize that it’s a fiction to say Congress has a single point of view.
When it comes to interpreting the constitution, conservatives likewise tend to be focused on the point of view at enactment. But it’s even more of a fiction to say that the states had a single point of view, and in any case, the text of the constitution often isn’t precise in the way contemporary statutes are. So the conservatives are guided more strongly by the historical evidence about what the sovereign states would have “understood” themselves to be giving up, in replacing the Articles of Confederation with a central federal government.
Given that, they interpret the Fourth Amendment by reference to the historical evidence of what phenomena it was responding to. And as a historical matter, the aim of the amendment was to require warrants, not to narrow the scope of what could be searched or seized. So where there’s probable cause that a crime has been committed, a warrant may issue, and it can be directed at the property that “committed” the crime, since that was a known practice in English law at the time.
> That said, the conservatives tend to be literalists from the perspective of the legislature or regulator at the time the law was enacted
I find it ironic that they view the Constitution as "at the time the law was enacted" and continue to rule on literalism that way, even though those same people explicitly specified that laws and the Constitution should be reviewed, revised, and otherwise be interpreted as appropriate for that time, not the time of writing.
There's never really an explanation as to why "we have to treat these things like infallible perfect works" when they're not, and even their authors told us they're not.
> There's never really an explanation as to why "we have to treat these things like infallible perfect works" when they're not, and even their authors told us they're not.
They are not, though. The constitution can be changed and has been changed many times in the past. I assume they think (or justify their decisions by saying that at least) that it’s not their job to pass legislation or enact constitutional amendments without any input from the states/congress which seems like a reasonable viewpoint.
> "we have to treat these things like infallible perfect works"
They don't treat the law as perfect, they just believe they don't have the leeway to reinterpret the law as they want in contradiction of the text. The law doesn't work if justices can read between the lines to get what they want.
> would you argue that the definition of a "well-regulated militia" has changed in the last 240 years
That's a good question. And the answer is yes.
At the time it was written, that phrase would roughly mean well-organized, well-armed, well-disciplined. Not regulated in the way we use the term today, to refer to something governed by regulations.
the whole point of the people bearing arms, is to enable the people to regulate the activities of a militia directed by a tyrant, example being rebellion against the occupying redcoats, the commision of the war of independance, and succesion of the republic.
The prefatory clause of the 2nd amendment does not require a well-regulated militia to be in existence in order for the right to be protected, it expresses the motivation and then declares the right uninfringeable:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Maybe you'd be happier if it said:
"The right of the people to keep and bear Arms while they are members of a well-regulated militia shall not be infringed."
I am sympathetic to both sides of the jurispredential pragmatism/literalism question, but don't get your eggs twisted about what the 2nd amendment says, as only the most alien of consciousnesses could find ambiguity in its terse declaration.
> That said, the conservatives tend to be literalists from the perspective of the legislature or regulator at the time the law was enacted
There’s absolutely no objective basis for this statement whatsoever.
The Supreme Court is a political body and always has been. The current rhetorical fiction that it’s some other thing is really a relic of the post-war era that became cemented because it has been a helpful fiction for both sides at various points.
The sooner we retire the nonsense idea that the court is doing anything other than make politically calculated decisions the better off we will all be.
Supreme Court justices make decisions the same way every other political actor in our system does. Because they want to, because they can get away with it, and because their constituencies and supporters demand and incentivize it.
When it comes to interpreting the constitution, conservatives likewise tend to be focused on the point of view at enactment. But it’s even more of a fiction to say that the states had a single point of view, and in any case, the text of the constitution often isn’t precise in the way contemporary statutes are. So the conservatives are guided more strongly by the historical evidence about what the sovereign states would have “understood” themselves to be giving up, in replacing the Articles of Confederation with a central federal government.
Given that, they interpret the Fourth Amendment by reference to the historical evidence of what phenomena it was responding to. And as a historical matter, the aim of the amendment was to require warrants, not to narrow the scope of what could be searched or seized. So where there’s probable cause that a crime has been committed, a warrant may issue, and it can be directed at the property that “committed” the crime, since that was a known practice in English law at the time.