Working Paper No. 08-13:
Which is the Constitution?
Date Posted: 2008
Abstract (below) | Full text (most recent) on SSRN
When deliberating over District of Columbia v. Heller (the gun control case) the Supreme Court might do well to consider whether the result on which it settles will depend on the number and placement of commas in the Second Amendment. There are, after all, several versions of the Second Amendment available. They feature from zero to three commas in various arrangements over which reasonable minds have differed for a long time, as William Van Alstyne recently noted. And the problem is more general: identifying and preserving a single, agreed-upon version of a text produced by our federal constitutional ratification processes can be much more difficult than one might imagine. If the Court does rest a decision in Heller on an interpretation of one particular version (any one will do) of the Second Amendment, it should be prepared to answer a puzzling question about federal judicial power. The question is this: If the Court is in charge of interpreting the Constitution, does that mean it is also in charge of deciding what counts as part of the Constitution? Does the Court have, for example, the power to say a three-comma version of the Second Amendment is part of the Constitution, and the no-comma, one-comma, and two-comma versions are not? And if it does have that power, is it also free to select different Second Amendments for different occasions?