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Constitutional Hunting Season Heats Up

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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.

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