Constitutional hunting season is about to start again. The Senate Judiciary Committee opens hearings on President Obama's Supreme Court nominee, Elena Kagan, at the end of this month. The sharp-shooters of strict constructionism, original intent, and judicial restraint have been deployed to take up their usual positions.
Get ready once again for a rhetorical fusillade from the right as to why judicial activism (of the liberal variety, of course, but not of the conservative kind) is bad, and why judges should stick to the literal language of the Constitution, be true to the Founder's desires, and stay out of legislating from the bench.
The political oratory will be enticing to many, and sound astute, learned and even well-grounded. But much of it will be misleading, wrong-headed, and unsupported by logic, history, or the principles of the Constitution. A simple examination of the Senate confirmation proceedings themselves illuminates the fallacies of the conservative assault.
Sitting on the Senate Judiciary panel will be California's Dianne Feinstein and Minnesota's Amy Klobuchar. To any and all true-blue strict constructionists, the presence of these two women legislators ought immediately to sound the alarm of unconstitutionality and invalidate the entire confirmation process. The Constitution states clearly, directly and consistently throughout its many provisions that federal officials are to be men.
Regarding Senators in particular, Article I, Section 3 declares: "No person shall be a Senator who shall not have attained the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen."
The language should stop all strict constructionists dead in their tracks. Is there any definitive evidence to show that when the Constitution was adopted in 1789, "he" was also defined as "she"? And if one should turn to original intent to elaborate on the word "he," is there any clear and convincing evidence to demonstrate that, in the "men-only" legal and political era in which they lived, the male Founders of our country intended the word "he" to somehow encompass "she"?
The modern Supreme Court cases holding sex discrimination to be unconstitutional are of no help to strict constructionists. None of the decisions relied on any determinative evidence from the Founders, and all of them were the product of judicial application of the Constitution's fundamental general principles of justice and equality. In other words, to use the vocabulary of strict constructionists, the rulings were the product of judicial activism and of judges legislating from the bench.
The shortcomings of the strict constructionist position do not stop here. Other aspects of the confirmation process also reveal the doctrine's deficiencies. Take the hearings themselves. Where does the Constitution state that the Senate is empowered to hold hearings regarding Supreme Court nominees -- or regarding any other public issues, for that matter? The answer is: nowhere.
The legal endorsement for such unauthorized proceedings is a series of activist Supreme Court decisions of the late 19th and early 20th century, where the Justices again unabashedly legislated from the bench. Acknowledging the fact that the Constitution contains "no provision expressly investing either house with power to make any investigations and exact testimony," the Court looked at the needs and practices of legislatures through the ages to conclude in 1927 in the leading case of McGrain v. Daugherty: "We are of opinion that the power of inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to the legislative function."
The Kagan confirmation hearings will also feature another problematic presence for strict constructionists: The swarms of Senatorial aides buzzing around their bosses. There is no express constitutional authority to justify the presence of these assistants. The legal fig leaf that lends legitimacy to these staffers derives from -- yes -- those activists on the U.S. Supreme Court.
Of particular significance is the 1972 decision of Gravel v. United States, which gave an okay to congressional aides with these words: "[I]t is literally impossible, in view of the complexities of the modern legislative process...for Members of Congress to perform their legislative tasks without the help of aides and assistants; the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos."
The point should be obvious. Strict constructionism offers preciously little help to justify many of the ways and powers of today's U.S. government. The Constitution was drafted to rule a simple society of mostly farmers and small merchants. To govern a modern-day superpower and post-industrial state, the document's general principles -- but not necessarily its precise words -- are what need to be faithfully and flexibly interpreted.
In fact, the generation of Supreme Court Justices closest to the Founders told us as much. Speaking for the Court in the 1816 landmark decision of Martin v. Hunter's Lessee, the legendary Justice Joseph Story wrote: "The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its power...The instrument was not intended to provide merely for the exigencies of a few years, but to endure through a long lapse of ages....It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter."
The Constitution's guarantees in the Bill of Rights also speak directly of the Founders' open-ended vision of freedom. The Ninth Amendment for one plainly states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The language, the principles, and the logic of our democracy all indicate that the Founders strived to design a vibrant and adaptable system. Tying down the Constitution and its Bill of Rights to strict constructionism -- and the America of the 1780s -- would negate the Founders' work and relegate the great charter of our nation to a creaky and inadequate relic of history.
That's pretty clear. ... Men only. ... As it should be. You see, this is what happens when we give women the vote. Less than 100 years later, women and this girly man Sanders are still whining about these definitions, splitting the wrong hairs over a truly trivial assumption that women will automatically be given short shrift on any DC hearing.
Pleeeaaseeee ...
To quote Constitutional historian Howard Jay Graham, “zealots are seldom ambidextrous.” While not being a constitutional historian myself, I see the strict constructionists suffering in their ideological attempts to provide a consistent analysis of the constitution, because they do not recognize the impossibilities of this exercise due to the Constitution itself. For instance, doesn’t the Fourteenth Amendment pretty much negate most of their foundational precepts? With this being the case, it would seem to be impossible to delineate constitutional provisions bases solely on a sections origins, while at that same time ignore a latter section which modifies the previous (origins of the Tenth Amendment, i.e. States Rights, vs. the origins of the Fourteenth Amendments, i.e. ‘Federalism’).
I don't know where you get the idea that I don't like the U.S. Constitution. I think it is one of the greatest legal and governing documents of all time.
You indicate that "you either follow the Constitution or you don't." Of course that's correct. But what exactly do you mean by "follow"? Do you mean follow the principles, or follow the strict language? For example, here's a question for you: Where in the Constitution does it say that the Supreme Court can strike down laws of Congress as unconstitutional? The answer is: Nowhere.
The power to rule laws of Congress unconstitutional comes from the 1803 decision of Marbury v. Madison written by the greatest Justice of them all, according to most constitutional scholars, Chief Justice John Marshall. In that decision, Marshall reasoned that the general principles of the Constitution compelled the conclusion that the Court possessed this power--although it was nowhere stated in the text of the Constitution. The Court, in short, gave itself that power through pure logical reasoning--and without the benefit of any Constitutional Amendment.
The reasoning of the decision, based on the Constitution's general principles, was so powerful that the ruling and the power it gave the Court has become universally accepted.
For my response, see the last paragraph of my response to JNarragansett.
Also,I would add that strict constructionism and original intent are merely the starting points, not the end points. Of course we should pay attention to the words and original history of the Constitution. But those words and history embody principles--and it is the principles that are everlasting, not necessarily the precise words, or the specific details of history. We lose sight of the goal--a free, vibrant, and ever-progressing country--if we tie ourselves down to the specifics of 1789, and only the specifics of 1789. I doubt very much the Founders would have wanted that, and as I wrote in my article, the early major decisions of the Supreme Court indicate that they probably did not, as does the wording of the Ninth Amendment to the Bill of Rights.
Alain L. Sanders
When it comes to whether or not we should abide by the words or general principles of the constitution, it is important to note that while people support the idea of many individual rights, they shirk at protecting them when confronted with specifics. There is a process of amendment, and if you would like to change the constitution, then the drafters have given you an option for that. If you treat the words as living instead of dead you end up with a worthless piece of paper and an abandonment of the rule of law in favor of the rule of man.
As a larger point, do you think that the scope of federal authority as defined by the constitution is not a positive argument to be had on the national stage? If you believe that judicial activism is a good thing and that the constitution should be interpreted according to zeitgeist instead of text and drafters' intent, then shouldn't you relish the opportunity to push that position?
As I wrote in my article, later Court decisions pertaining to the equal treatment of women relied on general principles of equality and justice. Those are the principles of the 14th Amendment. These later decisions could only utilize the general principles of the 14th Amendment, however, because that Amendment was ratified, historically and politically, to assure the equality of former slaves--not women.
Moreover, to be technical about it, the 14th Amendment applies only to the states, not to the federal government. Therefore the equality of women as Senators would likely have to be based, if it were somehow ever challenged, on the Fifth Amendment Due Process Clause, which from a strict constructionist point of view, is vaguer and hopeless as a sturdy source of equality for women.
As for my position on judicial activism, I believe that the Judiciary, if it is to be an equal branch, needs to be as active as the other two branches of government. If the President and Congress are free to apply the principles of the Constitution to new contexts, to preserve, protect and advance the security and welfare of the country--which the President and Congress argue for and engage in every day (no matter what party they belong to)--then I believe the Judiciary should be equally free to apply these same principles to the new contexts too. Otherwise there will be no checks and balances to runaway majority--or runaway special interest--rule.
Alain L.Sanders
You're right, the 5th or 14th alone may not be enough, but if I had thought some more I would have realized that was not the only hope for women running for office persuading an originalist that it is constitutional. The 17th is not gender specific and any analysis would also bring up the 19th in terms of the rights of women and the privileges or immunities clause (as the constitution would be the ultimate precedent over the slaughterhouse cases).
You and I are in a bit of agreement however in terms of the balance of power among the three branches. I would prefer more parity, but I would rather achieve it through scaling back the dramatically increased powers of the executive and legislative branches rather than giving judges the power to make law instead of interpreting it. The problem with giving more and more power to a federal authority is that you empower special interest rule rather than combat it.
The 9th Amendment elaborates on the defined powers of Article 1. At birth, I am granted certain rights by God, that can not be restricted, even if necessary and proper.
Strict Constructionists understand that certain phrases do need to be interpreted by Judges, the 8th Amendment for instance, can have many definitions of "cruel" or "unusual".
However other phrases, like "Congress shall make NO law," "Shall not be infringed." "Any power" are absolutes
We would be quite foolish to exclude women given the simple fact that the English language does not have a gender-neutral pronoun; nor does it use gender as both Spanish and German do. The language is as the language is, and thus also every document that was ever written in it.
Nevertheless... we do significantly err in other ways with regard to language, namely, when we choose to substitute elaborate euphemisms for the simple words used in the Constitution. The word I am thinking of right now is: "bribery," which appears as the twenty-fifth word of Article two, Section four. We've come up with all kinds of euphemisms for that ... "campaign contribution," "lobbying," and lately, "corporate freedom of speech."
When the law forbids something that our craven human natures want to do, we rely upon the marvelous human invention called "the loophole." But when we do this in the context of a government for a nation of nearly 310 million people, it becomes the avenue of organized crime with nearly 310 million plaintiffs.
"It's not what the words say. It's what we do with them. And whatever we do, who pays the price? We ourselves do."