Wednesday, December 01, 2004

Law-talking guys weigh in:

Complete stranger Matt Trebelhorn takes the darker view:

"Strict Constructionist" is the phrase the wingnuts want you to use to describe them.  And I'm not sure that it's got any real substance (though I'm sure those who subscribe to it have a religious belief that it does, in fact, mean something) beyond casting the right wing in the parental, keep-those-kids-in-line role.

The term either originated, or came into wide use, as a bit of Nixon '68 campaign rhetoric.  If that doesn't tell you all you need to know...

Decidedly-not-a-stranger Kyle Brodie has a more measured (and longer) take:

I confess that I don't know the origins of the phrase, per se.
However, I can tell you how the theory plays out in practice. The
guiding principle for those Justices most frequently characterized as
"strict constructionists" (Scalia and Thomas, at the moment) is that the
text of the constitution should be read from the perspective of the men
who drafted it. That view is contrasted with the more expansive view
(popularized most recently by the late Justices Warren, Brennan,
Thurgood Marshall) of the constitution as a "living document."

One of the most dramatic contexts demonstrating the implications of
those two views is the interpretation of the Eighth Amendment, which
prohibits cruel and unusual punishment. A strict constructionist would
look at what punishments were common at the time the constitution was
written, and probably conclude that if it was okay in 1791, it's okay
now. Given that even death sentences were handed out with relative ease
200 years ago, you can see where a strict constructionist will take you:
let 'er rip! Justice Scalia, for example, thinks that the constitution
does not require that non-capital sentences be proportionate to the
crime. Why not? Well, because 200 years ago, the notion of
proportionality was a foreign concept.

On the other hand, those justices who view capital punishment as
something that is either unconstitutional or permitted only in the most
extreme case would argue that "evolving standards of decency" require
that we adjust our view of what the Eighth Amendment allows. The strict
constructionist can rightly point out that "evolving standards" is just
a code word for "the standards of an unelected Supreme Court Justice,
who bears no accountability to the democratic process." The
counter-argument, also persuasive, is that the country does, in fact,
change, and its laws must be interpreted to account for those changes.

Personally, as much as I respect the desire of judges to limit the
impact of their own subjective values on the decisions they face, I
think it's a fool's errand. It's nice to think that we could divine the
intent behind a 200-year-old text by eliminating our own historical
context. Unfortunately, many of the questions faced by the Supreme
Court involve circumstances which were simply inconceivable 200 years
ago. Is the electric chair cruel and unusual? Well, given that there
was no electricity then, it's hard to say. As Thurgood Marshall once
pointed out, the constitution doesn't mention a lot of things; how can
we guess what James Madison would have thought about a warrantless
search of an automobile following a traffic stop? What would John Adams
have thought about wiretapping? Given that the founding fathers can
only be viewed through the lens of our own history, how reliable is it
to rely on our guesses about how those men would have answered those
questions? I say, "not very."

The unavoidable distortion caused by 200 years of American history is
evident in the language used by those who use strict construction as a
sort of common sense trump card. For example, we might hear the
rhetorical question, "Do you really think that Thomas Jefferson believed
that men should be allowed to marry each other?" Well, I venture to
guess that the question didn't cross his mind. If it did, I don't think
it guided his constitutional work. The mere fact that there are new
questions being asked shows the limits of strict constructionism. The
more novel the question, the less useful the doctrine -- but also,
ironically enough, the more likely it is to be invoked.

Another less obvious (but arguably more important) limit of the utility
of strict constructionism is that the constitution was written by
many people, all with their own interpretations of how democracy should
work. Jefferson and Hamilton, though both ranked as founding fathers,
had very different views of how much power should accrue to the federal
government. Jefferson's view of popular democracy, though dominant now,
wasn't always widely shared. Smart people, with a better understanding
of constitutional history, have ways of adjusting for that variation,
but it does point out the myth that underlies the notion of "strict
constructionism" as that term is used in popular culture.

There's a lot more to say about the theory, but that's the gist of it.


Other than that, some cheering words from Terry Eagleton, writing on Benjamin:

"The more history presents itself as mortified and devalued, as in the sluggish, spiritually bankrupt world of the German Trauerspiel, the more it becomes a negative index of some utterly inconceivable transcendence waiting patiently in the wings."

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