Supreme Court justices are within their rights to consider whatever prior material they wish. No one has suggested that language and meanings at the time of the Constitution's writing ought to be ignored, only that they don't govern. As for language evolving coming up in those discussions, that's because that's the time its most appropriate. Langage evolving doesn't come up in every topic just for the hell of it.
The fact is that language as it existed in 1787 or any other point is not binding upon us. There is no particular reason that we should stick exactly to those meanings; it certainly does not mandate that anywhere in the Constitution itself. There is no particular reason we need to stick only to the intent of the founders; even if there was a singular discernible intent and were not reliant entirely upon the opinion of a few prominent individuals who let their vanity get the better of them and presumed to present their own opinions of the law be presented as definitive.
Hugo Black, who said a great many things most people here will agree with, and did far more in his life for the betterment and defense of liberty in this country that sit around and complain about "tyranny" all the time, had something to say on this, since people are so in love with quoting authority figures:
Quote:
While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.[73]
Moreover, Black took a narrow view of what constituted "speech" under the First Amendment; for him, "conduct" did not deserve the same protections that "speech" did.[74] For example, he did not believe that flag burning was speech; in Street v. New York (1969), he wrote: "It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense."[75] Similarly, he dissented from Cohen v. California (1971), in which the Court held that wearing a jacket emblazoned with the words "**** the Draft" was speech protected by the First Amendment. He agreed that this activity "was mainly conduct, and little speech."
If you want literalism and complete lack of interpretation, you will quickly find that your rights are far more constricted than if the court interprets how they apply to cases not clearly envisioned by the text. There wasn't any single exactl meaning for "cruel and unusual" or "shall not be infringed" in 1787, and there isn't now and that applyies to most of the Constitution. The plain meaning of the text to the common person is what is most important because it is the
people's Constitution. Part of the reason we put it in the hands of judges is so that individual political subsets do not get to tell the rest of "We the People" how their document is to be used.
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