Saturday, December 10, 2005

Conversations Around the Net Part IV:

Strict Constructionists vs. Living Document

I was searching the net for information on another post I was planning when I stumbled on to one of our local papers (okay, it's the Lawrence World Journal in Lawrence where the main campus of the University of Kansas resides) where a fellow wrote a letter arguing for (I believe) the removal of God from government invocation (a subject I will discuss on Sunday). As you should know by now, KU is extremely liberal and certainly has a number of shrill folks screaming bloody murder about the Christians and their plan to take over the world (or something) using this 234 year old practice of invocation.

Of course, I couldn't stand by and let the shrill and largely single mindedly opposed folks simply have their say without getting in a reasonable argument for moderation (I often think I know what Nurse Goody felt like when all the hysterical girls were screaming and insisting she was posessed or indeed the devil incarnate). As I began to read, I noticed that the polarization and group think of the crowd had conflated this issue with the question of Constitutional Constructionists and Living Document advocacy.

One commenter posted:

Maybe someone can explain to me what a "strict constructionist" is when it comes to the Constitution.

After reading the document multiple times over many years, I conclude that the Constitution says so very little about so many and broad topics that it cannot be strictly interpreted.

It seems to me the bulk of Constitutional thought is based upon interpretation and precedent.

I have a suspicion it was written with this in mind.

Thus, I am puzzled when judges and nominees call themselves "strict constructionists" who will follow the original intent of the document.

Empirically I conclude that what "strict constructionist" means is that the Constitution will be interpreted in a right-of-center, pro-corporate way (libertarian on economic matters; authoritarian on social matters).

Feeling like Dr. Frankenstein, running after the mob of villagers with their pitch forks and burning torches, yelling for them to stop torturing the poor creature since he might get really angry and be induced to kill them, I begin explaining the difference between these two judicial concepts. And, the entire time, I never once (though sorely tempted) injected the words "leftist", "moron", "socialist", "ninny".

Want to read more? ...

Ask and you shall receive.

Actually, I'll explain the idea of "strict constructionist" and the extremely open and broad constitution.

One of the things that the founding fathers realized is that, there are only two kinds of laws: those that protect rights and freedoms and those that take them away.

A law cannot do both.

They also understood that words DO have meaning. When one considers writing a law, it may certainly start out meaning to protect a right, but since each individual's right stops at anothers and this boundary is invisible, it may inevitably protect the right of one and take away the right of another.

In fact, because the founding fathers understood this, not only did they leave the first basic laws broad and capable of being widely interpreted, they actually wrote the ninth amendment that says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

A strict constructionist believes that this amendment is the guiding principle for deciding law because they understand that, with each case that is heard and every decision made, the increasing number of precedents becoming laws set by the decisions inevitably means a decrease in rights and freedoms.

A strict constructionist also believes that the tenth amendment is the decisive amendment that limits the powers of the federal government:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

They believe that the federal government should be limited to those powers expressly provided for in the original document under articles one through seven and all other powers and ability to set laws are delegated to the state as the local government, most closely chosen and representative of the citizens living there. (You may even refer to a strict constructionist as a "states' rights" advocate)

A strict constructionist believes that the government should practice "hands off" government (whether citizens, corporations, cities or states) and that the workings of the law as it is now practiced has been used to give too much power to the federal government. They may feel under certain conditions that they will be able to reverse the over implementation of law and reduction of freedoms, but mainly they believe that the necessary laws and precedents already exist (particularly as provided by the already constructed constitution) so the judiciary should avoid as much as possible setting any new ones.

by Mr. Leiker's comment(original letter):

"Their religion is irrelevant because they acknowledged that societies change, thus they created a system future generations could amend."

He is an advocate of the "living constitution" or "living document". The living constitution is based on article one which describes the legislative branch's power to create laws and designates the representatives as representatives of the people, thus, "we the people" being considered capable of deciding what laws we do or do not want, selecting said representatives, have spoken and they, in enacting them are expressing the will of the people. They see the role of the judiciary as largely "guidance" to insure that "we the people" in our continued search for:

"a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity"

do not encroach on the basic principles of the 10 amendments of the bill of rights.

They also believe that, as Mr. Lieks said, the fore fathers did not write the constitution as if it were the 10 commandments set in stone, but left it open and "incomplete" for the purpose outlined in the Declaration as a right of the people:

" alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

This is further re-enforced by the fifth article which provides the process to change or amend the constitution. Unlike the strict constructionist, they believe that, if the will of the people is to give more power to the central government, then that is the right of the people and, again, their responsibility is to insure the government is "checked" or does not use the laws to oppress the people. They also believe that the laws can be written in such a way that avoids any inevitable slide towards reduction in freedom, though a constructionist believes that every additional law added is a reduction in freedom.

Finally, the difference in a "living document" advocate and a "strict constructionist" may be best summed up as "central government" vs. "state's rights" or even “strong central government” vs. “federalism”, an argument we've been having since the founding fathers first sat down to hammer out the constitution.

In this, a "living document" advocate believes that the legislative branch, expressing the will of the people, enacting laws, given additional powers or providing additional rights, guarantees or even limitations, takes precedent above the sovereignty of the state and is enforceable on all states.

Strict constructionists believe, again, that the 10th amendment draws the line in the sand and says that all powers of the central government have already been outlined, the central government can make no laws governing anything beyond the powers already outlined in article one through seven or enforce them on the state. This does not presuppose that the legislative branch will not make laws or amend the constitution, but that those laws will be limited in scope to the pre-ordained powers. Further, that the people live in the states and that the government of the states most closely expresses the will of the people. Finally, because the power of the central government can be used to inflict “the tyranny of the majority” and that the entire reason the 10th amendment was included was to insure that the people living in less populated states, having less representation in congress, were not subject to laws, taxes or inversion of their ideas by much more populated states having more representation.

It’s the entire reason we have two houses, one with equal representation and one with representative legislation.

We have, in fact, gone to war over this very concept. Possibly, the first time we should have known it would come to that, and that it was going to be a never ending battle, was the day Hamilton and Burr met across a field with a pair of pistols. Or maybe it was when we first decided to ditch the Articles of Confederation?

Or was it when Governouer Morris wrote, "We the people..."?

Drop by tomorrow when I rip Mr. Lieks a new Liek-y hole for his not so original, and highly inaccurate, screed about Christians, God and the Constitution.

That is all. I a Constructionst or Living Document Advocate?


Kathy K said...

I'd say you are a constructionist. But I had to think about it. That was a pretty balanced explanation.

Kat said...

I'm actually really torn about it. Which is probably why I was able to write balanced. See, I want to believe that the constructionist idea works. And i see every day that it does.

On the other hand, we have such things as Jim Crow laws and women's suffrage which says to me that yes, an activist "living" document judge may have forced the US to come to grips with its race issues long before it was ready, but I would say that it was just about the right time since the race riots of the 60's and 70's could have turned into a race war eventually.

Imagine if we had not gone through our major angst in a post voters rights world and it was today when people were still being openly discriminated against, we had text messaging and blogging and cell phones.

Can you say French riots turn into race war?

So, I see that the living document concept has a good place.

A strict constructionist with a non-discrimination bent would have simply said that the law protecting the rights of all men already existed because the declaration said that all men are created equal and the constitution said "We the people" and finally, since it already existed would not have set a new law and the strict constructionist would not have forced the states to adhere to "we the people" because they believe the people are in the state.

In which case, I have a real question as to whether they would have insisted that the declaration gave equal protection before the law and that was a federal power that took precedence over state law?

Because, I believe, in the end, it would have taken the use or show of force by the US government to force integration since the states already believed that they had the right, as a state's right, to decide if they were going to be segregated or not.

So, I'm torn because I totally believe that we have tried to make law from the bench or at least inadvertantly, and I believe that we have set far too many precedents, giving laws or government more power because every one is a reduction in freedom.

Can there be a balance?