Two experiences inspired Allen R. Kamp to write this article. The first was a lecture by Professor Randy Barnett at the 2011 Loyola Constitutional Law Conference that focused on the meaning of “commerce” around the time of the Constitutional Convention. The second was a Colbert Report skit in which Colbert impersonated Paul Revere warning about the British while firing his guns and blowing his horn. These two experiences led Kamp to research how the Supreme Court has looked at technology and how the Constitution’s meaning of words have changed because of it.
Kamp discusses the rules that guide the Supreme Court when interpreting the Constitution in regard to technological change. Kamp looks at the First, Second, and Seventh Amendments of the Constitution, in addition to the Commerce Clause, and how certain—namely conservative—justices go beyond the literal language of the Constitutional text when dealing with technological change. Ultimately, there is no united philosophy when dealing with technological change and therefore the Court’s interpretive approach is ad hoc.
Kamp first discusses the First Amendment, specifically freedom of speech and freedom of the press. The meanings of freedom of speech and freedom of the press have expanded drastically over the centuries as forms of expression have also expanded. However, Kamp argues that extracting the general freedom of expression from the specific rights of the First Amendment is contrary to the interpretive doctrine of textual originalism, which focuses on the original understanding of a particular word. Due to the ever-changing analysis used to assess expression, the Court deviates from textual originalism.
Next, Kamp examines the Second Amendment and what “arms” are allowed in today’s society with the creation of automatic weapons and Tasers. Technology has changed weapons drastically since the late eighteenth century; an automatic weapon has much more killing capacity in comparison to the arms that existed in 1792, and technology has also created non-lethal weapons unlike arms in 1792. As a result of constant technological change, which one or should both receive Second Amendment protection? Additionally, does the Second Amendment tell us whether it protects an individual right or a group right to keep and bear arms?
Technology and society have changed commerce almost unfathomably. The Court has had to interpret commerce with innovations like the Internet, container shipping, new payment systems like wire transfers, debit and credit cards, and multi-national manufacturing, just to name a few. Kamp explains that even when narrowly defining commerce, it has completely changed since 1789. In particular, he observes commerce through the lens of the Pre-New Deal and New Deal eras.
Contrary to the above discussion, the Court uses historical analogies and focuses on essential function when analyzing the Seventh Amendment, while none of the other Amendments are subject to this type of treatment. Perhaps this is because the Court has not been challenged with technological or cultural change to the Seventh Amendment’s right to a jury.
Kamp brings to light the fact that the Court has adopted different approaches when analyzing and applying technological changes to each Amendment. Our Constitution has not lasted longer than any other nation’s by ignoring the changing circumstances that our society faces. Kamp suggests that the Court’s different interpretations and approaches can be practically justified and perhaps that is the best we can do.
Be sure to read the full article in the New England Law Review, Volume 50, Book 2, due to be published this Spring.