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Monday, October 31, 2005


The Myth of "Strict Construction"

The seventeenth of September is Constitution Day, in recognition of the 218th anniversary of that venerable document's signing by our nation's Founders. Of course, most of the federal judiciary pays no homage to that date. They are preoccupied rewriting the so-called "Living Constitution," amending it by judicial dictate rather than its prescribed method in Article V.

For the first 150 years, our Constitution stood as our Founders, and more importantly, "the people," intended, as is, in accordance with its original intent. Prior to the reign of Franklin D. Roosevelt, the courts were still largely populated with originalists, who properly rendered legal interpretation based on construction of the Constitution's "original intent." However, FDR grossly exceeded the Constitutional limits upon the authority of his office and that of the legislature in his folly to end The Great Depression. FDR's extra-constitutional exploits opened the door for the judiciary to follow the same path: To read into the Constitution what was necessary to make it conform to the demands of the prevailing political will.

In the decades that followed, the notion of a "Living Constitution," one subject to all manner of judicial interpretation, took hold in the federal courts. Judicial activists, those who legislate from the bench by issuing rulings based on their personal interpretation of the Constitution, or at the behest of likeminded special-interest constituencies, were nominated for the federal bench and confirmed in droves.

Consequently, we now have a Constitution in exile, it has become a little more than a straw man as the courts have become increasingly politicised. In recent decisions, judicial activists on the Supreme Court have cited "national consensus" and "international law" as factors in their decisions.

The Federalist Papers, as the definitive explication of our Constitution's original intent, clearly define original intent in regards to Constitutional interpretation. In Federalist No. 78, Alexander Hamilton writes, "the judicial branch may truly be said to have neither FORCE nor WILL, but merely judgment...liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." In Federalist No. 81 Hamilton notes, "there is not a syllable in the Constitution which directly empowers the national courts to construe the laws according to the spirit of the Constitution."

George Washington advised, "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all."
Today, 218 years later, Justice Antonin Scalia says of judicial activism, "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."

While the words "conservative" and "liberal" are ubiquitously used to describe Republicans and Democrats respectively, these words properly should describe whether one advocates for the conservation of our Constitution, as originally intended, or its liberal interpretation by judicial activists. Does one want to conserve Constitutional limits on the central government, or liberate those limits?Our Constitution was written and ratified "in order secure the Blessings of Liberty to us and our Posterity" as set forth in the Declaration of Independence "endowed by their Creator." It established a Republic intended to reflect the consent of the governed, a nation of laws, not men. At the close of the Constitutional Convention in Philadelphia, Benjamin Franklin was asked if the delegates formed "a republic or a monarchy." He responded, "A republic if you can keep it." We have all but lost it.

Original INTENT or original MEANING?

My suggestion is that "original intent" is not the best foundation for approaching the interpretation of the Constitution. It seems fair to say that I cannot know what "the framers" intended, especially when I know many of these people were "politicians," and today politicians are expert at hiding their intent.

In addition, the normative significance of the Constitution seems to me not to be found in the writing of the document but rather it is to be found in the fact that the Constitution was ratified. I don't think I can discover what all the politicians in all the states intended when the Constitution was ratified.

I suggest the better foundation for "originalism" is original meaning. The effort in the case is to learn the way in which the words were used when the Constitution, or an amendment, were ratified. It also seems to me this is what the Judiciary does routinely because Congress and other legislative bodies pass many statutes that do not rely on precise definitions. The Judiciary then has to try to figure out what the words mean, not what Congress intended.

I have one other suggestion for understanding the meaning of the Constitution. It seems to me the Constitution reflects WE THE PEOPLE. As such, it seems that one should not have to become a life-long constitutional scholar or Justice on the Supreme Court to know what the words of the Constitution mean. So another approach I suggest for figuring out the Constitution is to rely on the "plain meaning" of the words.

So I like either original meaning or plain meaning in thinking about the meaning of our Constitution.
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