Monday, October 19, 2009

Why Strict Construction and Originalism Cannot Be A Moral Way Of Interpreting The Constitution

Submitted by TJCLCR Staffer Elliott Becker:

Strict Construction and Originalism have a fair amount of cachet in conservative constitutional jurisprudence and that is fine as they have their merits, but unlike other judicial philosophies are only one (Originalism is a type of Strict Construction) to make the grandiose claim to being the only legitimate method of constitutional interpretation. The idea goes something like this: federal judges are unelected political officials, so judges, unlike the legislature or executive, should defer as much as possible to these elected bodies. For Strict Construction, it means going by what the words say. For Originalism it means going by what the words meant at the time the law was adopted.

This is a nice sounding idea, and certainly at least somewhat worthy of its due, but there are significant problems with it for constitutional interpretation, all the more so if it is the only method. There are actually enough problems with this methodology to write a book on the topic and there probably are one or two out there already. Nevertheless, I wanted to focus on a couple issues, particularly as regards the Orginalism strand, but this applies to Strict Construction more generally as well.

The very first thing to note is that the American Revolution was a break with the legitimate rule of the British government. By legitimate I don’t mean to make a moral judgment, but instead merely to note that while many people believed that revolution became necessary to overthrow an unjust rule, the government of Britain was both the original government most of colonists had become colonists under and that the government was continuous, there was no junta that took over, it was the British monarchy throughout. But a revolution did occur and the newly independent United States lived under the Articles of Confederation for a few years before deciding they weren’t working and a big enough group of states emerged to adopt the new Constitution. When some states broke with the Articles of Confederation, the Articles required unanimity to end them, and yet that is not what happened. The always intransigent Rhode Island refused to end them, so the other states just ignored Rhode Island. So the states weren’t following the law there. To recap then, in two of the U.S.’s fundamental moments, carried out by our venerated founding fathers, they weren’t following the expressly written rules. But OK, they are patriots, and to some people’s mind a better group of people than at any other time.

How about this then, the Constitution was written in secret and the provisions for amending the Constitution are literally the most difficult in the world according to Prof. Sanford Levinson. Originalism says that judges ought to abide by this constitution’s terms regardless of any manifest injustice they would work. Really? A constitution, drafted in secret by a small group of white men hundreds of years ago, with ridiculously difficult to affect terms, and judges should just do what it says. Really.

Alright, what about the issue of enfranchisement? Black people and women have both been enfranchised over the course of U.S. history, but when the constitution was amended to make that change it wasn’t followed up with a new constitutional convention. No, instead black people and women were just told to enjoy their votes (and not even often that) and accept the constitution they were given. That is the exact opposite of what a constitution is supposed to be. A constitution is supposed to be a contract by a society with itself on how it is going to govern itself. It isn’t meant to be imposed on a particular polity and told they have the tools to alter the contract. It would be like if I made you live in a house I had made, and told you if you didn’t like it that you had a screwdriver and that was the only way you were allowed to alter things. It might seem a bit unfair.

The above is meant to be the basis of an attack on Orginalism at the roots. We can’t simply accept the Constitution as it arrives to us, laden with injustice already as it is. To continue the attack to the end is beyond the scope of this post, but other the part is less theoretical and more practical, showing how Originalism is frequently used as mere pretext and discarded as needed by its advocates (Scalia in Heller for example). Also, some discussion is needed of the futility of trying to come to some sort of consensus on what words mean or meant when originally written (how do you define ‘right’?). Nevertheless, on its own the above should serve adequately to explain the moral bankruptcy of Originalism and Strict Construction.

But what of the Supreme Court, bereft of Originalism, with no lodestar to guide them in their grave tasks. In a shocking turn of events, the justices will have to come to judgments based on justifying their arguments to each other and the public. Law is a complicated mix of justice, social norms, institutional interactions and other things, and it should come as no surprise that there is no magic formula that produces the right result in all cases. Therefore a variety of methods, including Strict Construction and Originalism, should be used to produce a just result for society.

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