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Strict Constructionism and Constitutional Interpretations
2004-1-13
It is common in the United States for people to brand political opponents as “anti-constitution,” “against the wishes of the founders,” “judicial activists,” and so on. As with wars, interpretations of religious texts, and negative campaigning, each side viciously smears the others with terms that have negative connotations but little if any substance. Liberals love to complain about Bush vs. Gore*, saying that the constitution doesn’t give the Supreme Court the right to decide elections; conservatives love to complain about Roe vs. Wade, saying that there is no explicit right to privacy; and both sides think that what they think is the “literal interpretation of the constitution,” a sense in which the constitution is very similar to religious scriptures.
Many conservatives and libertarians explain that theirs are the True Meanings of the constitution using the notion of strict construction. Needless to say, the situation is much more complicated than it seems. As I explained in a comment to an article in OSP, there are three forms of strict construction; I wrote about strict construction in reference to whether gun rights in the United States depend on militia membership, on which issue the situation is somewhat different from on most issues, but it is still fairly appropriate as an example:
There are three forms of strict constructionism: historical, structural, and textual.
The historical form, often used by libertarians, relies on historical context and attempts to interpret the constitution according to the views of its framers and particularly those of the federalist papers. It is inappropriate here because of the introduction of the mass army, the hi-tech army, and new forms of guns. In 1787 guns were all fire-and-load and armies were composed largely of militias, and the interpretation of the right to bear arms then can’t apply today, when there exists nuclear weapons and smart bombs, and when armies are composed of professional units, some relying on sheer numbers and some on high technology.
The structural form is the most analytical one, and relies on the structures the constitution itself outlines; in other words, it infers from explicit clauses unresolved or ambiguous issues. This is the form of strict construction that underlies judicial review, for instance. It, too, can’t be used here because other parts of the constitution disagree about whether the militia is important or not; the clause about “calling the militia,” in Article 1§9 IIRC, supports the argument that gun ownership does depend on militia membership, but the application of all other rights suggests that it does not, for after all free speech is not dependent on religion, and the mood of the constitution is about giving rights to people rather than groups.
We’re left with the last form of strict construction, the textual one. It is the most pedantic but also the one that can be applied the most, and it is based on literal reading of the test. Hence, the first amendment guarantees separation of church and state but not freedom from religion, and freedom of assembly and petition but not of association. Now, the “a well-regulated militia being necessary to the security of a free state” is a participle, and it hence an explanation that can be stripped from the rest of the amendment; it is not equivalent to stripping “do not” from “do not commit adultery.” The problem here is not so much the importance of militia membership, which textual strict construction weighs down, but rather of whether partial gun control is constitutional. A system with the same gun laws as in Britain or Japan is hence unconstitutional; however, partial restriction on the use of certain firearms, such as instant background checks and the assault weapons ban, do not necessarily infringe on the people’s right to bear arms, because they can still carry regular handguns.
Generally speaking, libertarians use historical strict construction the most, as the founders of the United States are strongly libertarian by today’s standards, and hence a literal reading of the Federalist Papers supports libertarian views. Similarly, conservatives tend to support textual strict construction, because the United States’ constitution is very implicit on civil liberties, which conservatives usually oppose, but very explicit on issues that favor conservatism such as gun rights, the electoral system, and treason. Liberals rarely support strict construction, but when they do, they almost always support its structural form; this is not limited to the United States, but is rather part of modern liberalism at large: the government should be limited by a constitution, but the constitution shouldn’t be viewed as scripture.
The accusations of judicial activism should not be taken very seriously—at least not in the form they are made now. First, the constitution implies that the Supreme Court has the right to review laws for constitutionality and interpret the document in general (this requires the analysis of structural strict construction, but is still strictly constructive), which means that judicial activism is constitutional. Second, while judicial activism is usually unethical because it violates at least two democratic principles, namely separation of powers and a government limited by a written or unwritten constitution, most rulings that are attacked for judicial activist are simply structural strict construction with more analysis than on average, or a combination of the forms (Brown vs. Board of Education, for example, relies not only on the fourteenth amendment but also on the reason it was added to the document, namely as part of a scheme to create racial equality). And third, there is yet another democratic way to interpret a constitution, namely case law, meaning interpreting based on previous interpretations; case law is not strictly constructive, but is still democratic because it is still based on the constitution itself—note that in the USA, the Supreme Court has disregarded case law several times, such as in Brown vs. Board of Education, which repealed Plessy vs. Ferguson.
These four tools—case law and the three forms of strict construction—are appropriate in different circumstances, as my OSP comment shows to an extent. It is sometimes desirable to use more than one tool at the same time, by for example relying on both the structure a clause of amendment describes and the principle it was originally meant to embody, or even by relying on previous rulings to decide which of the three strictly constructive methods should be used. It is of course possible to check the justifications used for various rulings as well as other possible arguments for them, and to see which rulings are more judicially activist and which are less, and consequently it’s also possible to see whether liberal rulings are more judicially activist than conservative rulings or vice versa. Having a shouting match is definitely not the way to do it, however.
The four rulings cited in this article are:
Plessy vs. Ferguson (1892), which holds that segregation was constitutional based on the principle of "separate but equal."
Brown vs. Board of Education (1954), which repeals Plessy vs. Ferguson and holds that "separate but equal" is inherently unequal and hence unconstitutional.
Roe vs. Wade (1973), which rules that it's a woman's constitutionally-protected right to abort in the first 6 months of pregnancy, and at any time if giving birth will endanger her life (note that Roe vs. Wade does not ban late-term abortion when the woman is not in danger, but only allows states and Congress to legislate such a ban).
Bush vs. Gore (2000), which rules that a manual recount in Florida in the 2000 election is unconstitutional.
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