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Thursday, January 20, 2005


What is a "Strict constructionist"?

With President Bush about to be given the opportunity to appoint a Supreme Court Justice, and maybe more than one, we will hear the term "Strict constructionist" bandied about by both the right and the left during the arguments back and forth. But just what does this term mean?

After all, it can be legitimately said that those on the right want the same thing in their judges as those on the left want of theirs; candidates who would support their ideas and directions. They certainly wouldn't appreciate a Judge who would rule counter to their thoughts, now would they? So, are conservatives being hypocrites to use the strict constructionist terminology as a qualification for judicial candidates?

The right uses the term as a sort of litmus test for judicial candidates, though maybe it should be considered an anti-litmus test. As it stands, the right generally sees a strict constructionist as someone who does not utilize his personal ideology to adjudicate cases but needs only a thorough knowledge of Constitutional history to do so. But the idea of strict constructionism can be a tad problematic when looked at closely.

Let's be honest. There are many things in the United States' history of which the Constitution approved that we conservatives would certainly not endorse today. Need we be reminded that slavery was a Constitutional right in the original document? Need we recall that the vote was not extended to all citizens equally in the original document? Later than the founding we even had the disastrous idea of prohibition added to the Constitution that had to be struck down. So, the Constitution did have some things in it that we "strict constructionists" would not support at this time.

So what the heck do we mean when we say strict constructionists?

Strict constructionists realize and accept that past precedent at times changed original intent of the Founders in post Founder's era law adjudication and they do not necessarily want to over turn all post Founder precedent back to original intent. So, in effect, they do only want to use what they want of the Founder's desires. But the distinction that eliminates the charge of hypocrisy is that strict constructionists want to first consider what it is that the Founders wanted and then make the decision if it makes sense in that light to change or stray from what those Founders desired.

Another difference, and this is an important one, is the "living document" claim that the left uses to justify their desire to rewrite law to suit their situational desires. They say that the Founders realized that things would change and so they wanted the Constitution to be able to change with those times. This is true to a degree, but is not true to the extent that the left wants to use to stretch the Constitution and alter it with their every whim. The Founders did, of course, realize that the document would need alteration once in a while, hence their provision for amendment, but they certainly did not think that the Constitution should be amended easily or frivolously. George Washington remarked that "... the constitution, which at any time exists till changed by an explicitly and authentic act of the whole people is sacredly obligatory upon all." His emphasis on the whole people clearly means that he did not view Judicial activism as a legitimate process for amending the Constitution.

Further, what better way to advocate for total anarchy than to claim that no document is worthy to follow in an untouched state? Can any law be viewed as sacrosanct if we can change it at any given time for what ever frivolous reason we can concoct? Changes in law should be viewed with a jaundiced eye and care should be taken that such changes are proper and legitimate and not just situational.

As to what the Founders thought about the idea of strict constructionism, also called "original intent", we can see their very words from which we can understand that they, themselves, thought that constant reinterpretation was an evil to be avoided. It must first be remembered that a contract must always be interpreted according to the desires of the parties involved in that contract and massaging the terms of agreement is grounds for dissolution of the contract. The Constitution should not be viewed very differently than any other contract. Therefore, when considering Constitutional meaning we must have a thorough knowledge of Constitutional history as well as a grounding in the governmental models and theories held by those who wrote the document in the first place.

Along these lines James Madison, fourth President and recognized as the Father of the Constitution, said, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense." He warns us to look back and discern what the Founder's generation meant when they created our Supreme Law.

Even Thomas Jefferson said in 1823, "On every question of construction, carry [y]ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Jefferson, no fan of the abuse of power by the Courts, worried that we would cast aside the ideas the Founders spent so many agonizing sessions creating and supplant them with temporary political desires and situational ideals that would neither stand the test of time nor the tenets of a moral government.

But certainly times have changed. We have amended the Constitution and some of those amendments did run contrary to what the Founders desired. So where does that leave us with the idea of strict constructionism and original intent as it concerns our actions today? We should expect no less from our Founders than we do of our modern Supreme Court candidates. A detailed knowledge of Constitutional law, an intricate education in the Founder's ideas as well as a general knowledge of the history that the Founders used to formulate their ideas.

What we need are historians as much as Judges. We do not need a Judge who wants to change the world, but one who wants to uphold the Supreme Law of the land.

By Warner Todd Huston
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