June 17, 2006

Strict Constructionism and the Goals of the Conservative Movement

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Strict constructionism is a philosophy of judicial interpretation and legal philosophy that limits judicial interpretation to the meanings of the actual words and phrases used in law, and not on other sources or inferences. Adherents look strictly at the text in question rather than relying either on legislative intent (as gleaned from contemporaneous commentaries or legislative debate) or on metaphysical ideas such as natural law. ...

The underlying argument behind strict constructionism is that if a legislature truly wants to enact a particular law, they are capable of writing it down in plain English and passing it, and it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Supporters interpret this position as judging based on what the law is, not what it should be.

-- Wikipedia

Strict constructionism has become somewhat of an issue as of late. Most if not all of Bush's high-level judicial appointees have been constructionists. He likes to solemnly make the claim that he does not apply a litmus test to his candidates, and then, usually in the same breath, states that "I believe in strict constructionists. And those are the kind of judges I will appoint." As if there is a difference between the two. For conservatives, "strict constructionist" is a code word for all of the litmus tests, on abortion and a broad range of civil rights issues. This was specifically spelled out in 1969 by former Assistant Attorney General, and later Supreme Court Chief Justice William Rehnquist:
A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs...
But strict constructionism is more than just a litmus test. It is rapidly becoming a way to help disassemble the Constitution of the United States and render meaningless many if not most of the rights and liberties guaranteed under it. Strict constructionism is a tool being used in the current conservative quest to place as much power as possible into the hands of government, and to weaken the power, rights, and capabilities of the American people, so as to make possible the imposition of a specific social and moral structure which, by nature, is unconstitutional. Since revolution and amending the Constitution can be difficult and messy, it is much easier simply to reinterpret the standing law under a new paradigm--ironically, in part by claiming that one should not be allowed to interpret anything.

If you think that's a radical view, then read on, and I'll explain.

Strict constructionism is supposed to mean that the law is exactly what is written down, and not one iota more. It specifically precludes interpretation, or the application of changed social standards and meanings into a broader or modernized meaning of the original law. Abortion is the classic case. The founders did not say anything about this, naturally. So the question becomes, can the government ban it? A strict constructionist would say "yes," because the right to abortion is not clearly written down in the Constitution. They rail against the Roe v. Wade ruling that interprets a right to privacy from the text of the Bill of Rights, and applies that to medical decisions, including abortion.

What amazes me is that strict constructionism can exist at all, considering one rather sticky detail: the Ninth Amendment to the Constitution of the United States. That amendment reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
There is no question whatsoever that people everywhere consider privacy to be something they desire, even crave, and consider a right. The privacy of one's own home, the privacy of the bedroom, the privacy of one's personal life, one's secrets. Privacy is perhaps one of the most natural of all expected rights. How could that not be covered by the Ninth? And yet, you have Supreme Court justices like Clarence Thomas saying,
"...just like Justice Stewart, I can find neither in the Bill of Rights nor any part of the Constitution a general right of privacy, or as the Court terms it today, the liberty of the person both in its spatial and more transcendent dimensions."
Thomas was referring to Justice Potter "I know it when I see it" Stewart, who said in 1965, “I could find no general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court." Stewart, however, later reversed himself and voted for Roe v. Wade. (It should be noted that in his confirmation hearings in the Senate, Thomas said, "In my view there is a right to privacy in the 14th Amendment." It is not clear whether he was lying, or like Justice Stewart, simply later changed his views. You can guess what I believe.)

Despite Thomas' apparent blindness to the Ninth Amendment, it does exist, and it does say that the rights of the people are not limited to strict constructionism. Here's a good example of how to see this: the Ninth clearly states that there are rights held by the people which are not enumerated in the Constitution, but what are they? The right to have children would be a big one, for example. Get a piece of paper and a pen or pencil, and start writing them down. See how far you can get without putting privacy in there in one form or another.

Actually, it'd be great if readers could record those rights they feel are on the list in the comments below.

My point here is, however, that the Ninth Amendment is antithetical to the core philosophy of the strict constructionists. By its very nature, it contradicts strict constructionism or related philosophies like textualism (which Thomas claims to adhere to). Strict constructionism says that you can only judge on what is written specifically in the law. But the Ninth Amendment says that there exist rights not specifically written in the law.

Well, we can't have it so that everything is a right. There has to be some mechanism that determines what is a right and what is not. Currently, that role is played by judges, well-trained in legal, historical, and constitutional matters. They occupy a place best suited for judging our rights--determining the validity of the laws passed and the enforcement enacted. They do not bow to special interests, and the important ones do not have to run for re-election. Nothing is perfect, but that's probably as close as we'll get in our system.

However, the decisions made by many of these judges, even many of the conservative ones, appall the political and religious standings of many right-wingers, who rail against "legislation from the bench" (which more and more means "any decision I happen to disagree with, no matter how well-supported by law"), and call for constructionists to save the day.

But if judges cannot act as the mechanism to determine what our unwritten rights are, then how do we determine them? According to Antonin Scalia, an "originalist" (another brand of constructionist):

"Don't think the originalist interpretation constrains you. To the contrary. My Constitution is a very flexible Constitution. You want a right to abortion? Create it the way all rights are created in a democracy, pass a law. The death penalty? Pass a law. That's flexibility."
In other words, Congress, the legislature, should be the judge of what rights we have. The problem: the Bill of Rights was specifically designed to deny the Congress the ability to refuse the people these very same unenumerated rights! And here's Scalia, saying they should be the ones to determine those rights! That's "flexible," all right!

Clearly, strict constructionism has deep problems, even assuming it is a completely honest philosophy and not simply a means of applying one's own personal moral code as predominant over the constitutional rights of the people.

For a moment, let's move away from the judiciary, and to the conservative movement in general. In recent years, we have seen a broad range of attempts by conservatives to reshape the United States in a conservative political and religious paradigm, and this new social pattern is, by its very nature, unconstitutional. It includes:

Religion: A merging of church and state, making the United States a Christian nation, not just by makeup, but by law. It would impose Christian values upon social systems such as education (indoctrination) and medicine (abortion and pharmacology).

Plutocracy, government by the wealthy. While not a wholly Republican movement, it is an overwhelmingly conservative one. It places the welfare and rights of wealthy people, corporations, and institutions, over and above those of the people in general. We have seen this in the conservative handing over of power and influence in energy, agricultural, telecommunications, pharmaceutical, and credit industries; in each field, over the past several years, sweeping laws have been passed that favor corporate interests over the interests of the people. Tax laws passed in the past five years have overwhelmingly favored the wealthy.

Civil Rights: more and more, we see them violated. National security, now in the form of the unending "War on Terror" is being used as the mechanism to deconstruct currently existing rights. The Fourth Amendment is simply the most recent to go, and in the most spectacular flameout. It has now been established that the government can search and seize without warrant in the name of national security, and because of national security, the government can avoid having to explain why. This does not just apply to the fourth amendment, but to practically all of the amendments. The government can abridge your freedom to speak or assemble ("free speech zones"), to petition for redress, to answer for a serious crime without indictment or due process of law, to be informed of charges being made against you, to have a speedy trial, to confront witnesses against you, to have a trial by jury or any trial at all, or to not have cruel or unusual punishments inflicted. All of these enumerated rights have been violated in the past few years.

An important point: on civil rights, I expect to hear what I have heard before: that these are only special cases where these rights are violated, and it won't apply to most people. Even if such a thing is acceptable to you for any reason (read one of my very first blog posts to see why I disagree), I would still disagree on the grounds that any incursion on our rights, however little you may make of it today, will be used as a wedge to open a further incursion later on.

Don't believe me? I can prove it. See this blog post, where I stated that the mention of God in the pledge, the oath, and on money should not be tolerated, because:

...these religious incursions, each one violating the principle of church and state, are used to justify the next step, the new religious incursion.
I made that statement because a post I had written the day before on a similar issue, and a commenter had replied that "little things" such as Ten Commandments displays should be allowed to pass. That was on March 3 and 4, 2005.

Well, one year later, almost to the day, Scalia wrote a dissent in McCreary v. ACLU which read, in part:

Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” ...

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between . . . religion and nonreligion,’” ... and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” ... is unconstitutional?

I hate to say "I told you so," but I told you so. The scary thing is, Scalia's dissent was a dissent only because O'Connor was the 5th vote in the majority; had McCreary been decided with today's court, Scalia's opinion would have been law. And it undoubtedly soon will be.

Any precedent, no matter how seemingly inconsequential or trifling, can and will be used as precedent, as a future legal justification for a much greater incursion against the rights of the people.

So, to recap, the conservative movement has been attempting, with great success, to reshape the United States into a new mold, incorporating elements of theocracy, plutocracy, and fascism by merging religion and state, empowering the wealthy and the corporations, and by deconstructing the individual rights of Americans.

Strict constructionism is simply the last building block of this conservative legacy in denial of the constitutional legacy left us since the formation of the country. Strict constructionism adds the element of denying unenumerated rights, in addition to denying the enumerated ones.

This does not paint a pretty picture for the future of the United States if it succeeds. But it is a working blueprint, and it is in the process of being enacted.

The question is, do the American people have the will, or even the desire, to stop it?

Posted by Luis at June 17, 2006 08:15 PM


I so admire your ability to put together such a fabulous post. Awesome work. This should damn well be one that you cross-post to DailyKos!

Seattle, WA

Posted by: Paul at June 18, 2006 05:01 PM

Paul: Thanks. And it was.

Posted by: Luis at June 18, 2006 05:12 PM

The right to privacy that exist can be found in the Common Law of Torts.

In the law of torts, your privacy right is recognized, and if someone breaks it, you have a right to be compensated.

The ninth amendment then is the conduit from the constitution to the common law.

The constitution was written with the common law in the background. All rights people enjoyed, prior to the constitution, came by way of the common law. When the ninth amendment retains liberties and rights to the people, common law rights were some of those rights, of which the law of torts was one such area, and of which privacy was one such of those common law rights.

So, by way of the 9th Amendment, Common Law, and Tort Law, a right to privacy exists.

Now the extent of that right has to be found. Certainly it would have limits. But "a right" of privacy did and does exist, from the common law of torts to the constitution by way of the 9th amendment.

Posted by: Tim Kane at June 19, 2006 05:39 AM

So Thomas is either (a) disagreeing that privacy is either a primal right or is delivered via the Common Law of Torts and the Ninth Amendment, or (b) is ignorant of the fact.

Either way, it seems he--probably the same as three to four others now on SCOTUS--is simply elevating his own personal whims above the law.

Posted by: Luis at June 19, 2006 02:16 PM