The Soap Box

Quick, define the term “Strict Constructionist.”

You failed the quiz, didn’t you? Don’t feel bad. That surely puts you solidly among the vast majority of American citizens (some of them in the highest levels of our federal government) who also have no idea what the term actually means. But if you’re a member of the Republican party, you’re obligated to use it - or some coded equivalent - despite your ignorance.

And if you’re President Bush’s nominee to the Supreme Court, then you definitely have to use it, just as Harriet Meirs did in her remarks upon being nominated to the high court. She said, “It is the responsibility of every generation to be true to the founders’ vision of the proper role of the courts in our society. If confirmed, I recognize that I will have a tremendous responsibility to . . . help ensure that the courts meet their obligations to strictly apply the laws and the Constitution.” Strict Constructionism. There’s a good definition.

Except that she got it completely wrong, which is a great quality in a nominee to the Supreme Court. Or whoever wrote her remarks got it wrong. No, wait. Judging by her Senate questionnaire, she clearly wasn’t getting any help managing her nomination; so yeah, she got it wrong. Strictly apply the laws and the Constituion? Have the courts not been applying them strictly enough? On some days, the Supreme Court feels like enforcing the prohibition on cruel and unusual punishment, and on other days they just let it slide? This is the first misconception about what it means to follow Strict Construction principles: It has nothing to do with the application of the law, and everything to do with the interpretation of the law.

Strict Construction is a theory of constitutional and statutory interpretation championed primarily by Justice Scalia, and to a lesser degree, Justice Thomas. It basically posits the following (get ready, it’s slightly complicated): The proper interpretation of a constitutional or statutory provision can be divined using only the plain meaning of the words of that provision, as that plain meaning was understood at the time the provision was written. This is often coupled with the theory called Textualism, which says that the context of the entire Constitution or the entire statute can help to give meaning to the words of the provision being interpreted. A Strict Constructionist therefore considers the plain meaning of the words of the provision, guided only perhaps by the plain meaning of the words in provisions surrounding it, when attempting to interpret the law. Most importantly, the tools which advocates of a more broad theory of intepretation might use - such as legislative history (the record of debate when the provision was being written and voted upon), societal changes since the time of the provision’s passage, and the laws of other countries - are irrelevant for purposes of interpretation. There’s your definition. No wonder so many people get it wrong.

“The Congress shall have power to . . . regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” That is the Commerce Clause of the U.S. Constitution. It is one of the most litigated provisions of the Constitution and has been the basis for a very large degree of Congressional power. For instance, the Civil Rights Act of 1964, ending segregation in public accommodations like restaurants and hotels, derives its authority from the Commerce Clause. Shortly after the Act’s passage, the Supreme Court decided that, because people travel from state to state and stay in hotels, hotels were included in the meaning of interstate commerce which the Commerce Clause allows Congress to regulate. Therefore, Congress’ ban on discrimination is constitutional.

A Strict Constructionist on the court when the decision was handed down, attempting to determine the plain meaning of the words “commerce . . . among the several states,” as it was understood in 1787 when the Constitution was written, might note that interstate travel requiring a stay at a hotel was much more rare and not terribly lucrative in the eighteenth century compared to 1964 since cars did not yet exist. As such, it was not likely the first thing to come to mind when considering “commerce . . . among the several states.” But even if it is enough to constitute interstate commerce that a person stays in a hotel and has crossed a state line, black people did not cross state lines virtually at all in 1787 (at least in many states) except when being shipped by their owners. So black people staying in hotels in other states definitely could not have been within the plain meaning of the Commerce Clause at the time. At most, the framers might have been referring to white people staying in hotels in other states.

Alternatively, a Strict Constructionist might remember that under the Articles of Confederation, the various states acted essentially as independent nations and would place tariffs on goods entering their borders for sale, a problem which the Constitution remedied. It might therefore be concluded that the plain meaning of the Commerce Clause includes only goods crossing state lines which might be subject to tariffs (which is more or less Justice Thomas’s position, by the way), a far leap to racial discrimination in public accommodations. And yet it is equally as plausable, given all of this ambiguity, that a Strict Construtionist might conclude that the Commerce Clause includes any commerical activity of any sort which involves more than one state in any way. Whatever side a Strict Constructionist comes out on, clearly the words have no plain meaning.

Therein lies the folly of Strict Constructionism as a constitutional theory: Words generally do not have plain meanings, and the ones that do require no interpretation. The purpose of the Supreme Court is to clarify the ambiguities inherent in the language used in making our laws so that the laws may then be applied consistently, establishing a rule of law, not of men. But Justice Scalia’s dogged insistence that a plain meaning may be arrived at in all cases - and his morally superior attitude about almost everything - often leads him to dismiss perfectly reasonable positions and deflect legitimate criticism using his fallacious theory of interpretation as a shield.

All of that is very complicated blather that only a lawyer could be interested in. So what are Republicans talking about when they preach the gospel of Strict Constructionism? Well, what they really mean is that a Strict Constructionist isn’t a judicial activist; he or she would never legislate from the bench. Only sometimes they even have trouble keeping that much straight.

Take for instance a recent appearance on Meet the Press by Republicn Senator Tom Coburn to discuss the current Supreme Court nominee, Judge Samuel Alito, with Tim Russert. The good judge’s dissent in the case Rybar v. U.S. was one topic of discussion. The case involved the federal assault weapons ban which made it a crime for civilians to possess a machine gun. It is settled law now that anything which has a substantial effect on interstate commerce may be regulated by Congress under the Commerce Clause. Based on this doctrine, the Third Circuit Court issued a decision concluding that Congress’ claim that the interstate trafficking of firearms had overwhelmed state law enforcement’s ability to prevent criminal activity involving guns to the extent that is has become an issue of “national concern” was enough to bring it within the Commerce Clause. The court therefore allowed Congress to outlaw the possession of machine guns whether they had traveled in interstate commerce or not. Not the cleanest of logic, really. And just for good measure, putting the cart before the horse, the court also rested its decision on the fact that outlawing the possession of the weapons would assist in preventing their interstate sale - i.e. no willing buyer, no sale. Of course, no interstate sale, no Commerce Clause power. Details, details.

To these arguments, Judge Alito responded thusly: 1. regardless of “national concern,” the intrastate possession of a machine gun is not a commercial activity and bears no relation to interstate commerce; and 2. if Congress may regulate interstate commerce by outlawing all possession of any article it chooses so long as that article sometimes travels in interstate commerce, there is no limit to its powers since in our modern world at least one item of virtually all articles held for sale cross a state line at some point. Alito therefore concluded that while regulating the interstate transfer of machine guns is within Congress’ powers under the Commerce Clause, Congress’ ban on the fully intrastate possession of machine guns is unconstitutional.

Russert (who himself most assuredly does not know what a Strict Constructionist is) gave Senator Coburn a little pop quiz of his own on national television:

Q: Do you think Congress has the right to restrict the sale of machine guns or do you think Judge Alito is right? (actually Judge Alito thinks Congress has that right, too; he just thinks Congress can’t regulate the INTRASTATE POSSESSION of machine guns)

A: Yes, I think we probably do. Judges don’t have the right to decide whether Congress has the right under the Constitution to restrict the sale of machine guns (actually, that’s pretty much EXACTLY what judges do in this country). “Those are decisions that legislators should be making. And that’s how we’ve gotten off on this track is, that we allow judges to start deciding the law, new law, rather than interpret the law that the Congress–what the–what should have happened in that case is this is an area that’s up for debate and needs to go back to Congress. If Congress decides that, then it should be there .” (huh? what new law? the Commerce Clause is in the Constitution! and Congress should decide what Congress can do under the Constitution? you don’t believe in checks and balances?!)

Q: So Judge Alito was wrong? (no, you misrepresented Alito’s position.)

A: Sure. (wait, what?)

Q: And he was legislating? (what are you talking about?! he wanted to strike down a law; how is that legislating?!)

A: Sure. (wait, who’s side are you on?!)

Q: So conservative jurists or Strict Constructionists can also legislate? (oh boy . . .)

A: “Well, I’m not sure that’s what he is yet. You’ve assumed that. I haven’t made that decision on what he is . . . .” (yeah, no one’s buying that one, Senator; you’ve just been spanked.)

Coburn’s score: 1. The judiciary is not a check on the Congress. WRONG 2. Judge Alito was legislating from the bench when he argued for striking down a federal law as unconstitutional. WRONG 3. Senator Coburn is not yet sure that Judge Alito is a Strict Constructionist. WRONG It’s not looking real good.

So if Republicans don’t actually know what Strict Constructionism is, and end up undermining their own when they can’t keep it all straight, why are they still trying to force this Strict Constructionism stuff down our throats? Abortion and gays: The two legal issues conservatives just cannot forgive the judiciary for. Since the 1970s, the Supreme Court has firmly defended its expansion of the right of privacy (not found anywhere in the text of the Constitution) to include a woman’s right to choose to have an abortion. And more recently - in Vermont, Hawai’i, Massachusetts - state courts have begun expanding equal protection doctrine to mandate that gay people be given the same state privileges of marriage that straight people enjoy.

Conservatives came up with the phrase “legislating from the bench” to describe these expansions of constitutional rights. Some other examples of legislating from the bench to create rights not found in the text of the Constitution include: ending segregation in Brown v. Board of Education; requiring police officers to “read citizens their rights” prior to interrogation and providing a lawyer free of charge for those who cannot afford it in Miranda v. Arizona; prohibiting the states from outlawing the use of contraceptives in the privacy of one’s own home in Griswold v. Connecticut (the precursor to Roe); striking down a state constitutional amendment which proactively nullified any state law providing legal protections for gay and lesbian people, concluding that such laws do not amount to “special rights” in Romer v. Evans (a decision authored by Justice Kennedy, a conservative); and most recently, giving voters an equal protection right to have their votes for President counted in the same manner in every county in Florida (but only in Florida, only in counties which favored Bush, not necessarily to be counted by the same means - i.e. by hand or by optical scanner, which have vastly different error rates - and only in the 2000 presidential election because the Supreme Court explicitly told every other court in the nation never to cite this case as precedent) in Bush v. Gore, an opinion which both Scalia and Thomas signed onto, incidentally.

In a perfect world where every word clearly means what it’s intended to mean, it is true that a Strict Constructionist would not legislate from the bench, and wouldn’t expand constitutional rights. But language is not so determinate, and even Strict Constructionists have resorted to legislating from the bench every now and again. But it’s not clear anyway that refusing to expand constitutional rights is a good idea, even for Republicans. President Bush has never come out in favor of segregation, in opposition to contraceptives, or against votes being counted in his favor in his presidential election. All Republicans know is that they want abortion and gay rights written out of the Constitution. And like a torturous pop song you just can’t get out of your head, selective Strict Constructionism is the most politically catchy, and therefore most efficient way to get it done.

Ironically, Judge Alito’s dissent in Rybar, so viciously attacked by Senator Coburn, was the exact opposite of legislating from the bench, limiting Congress’ power to intrude into the private lives of Americans. It is more faithful to the Constitution than the majority opinion which upheld the federal assault weapons ban is, or than the Congress that passed the ban was. Many of Justice Scalia’s undeniably conservative opinions are similarly faithful. Judging is a very tricky business; it does not align neatly with political or ideological persuasions, so any process for the selection of judges would be imperfect. Our system is explicitly political, and that is the best system for picking a jurist who will be virtually unaccountable for the rest of his or her life. In order to insulate judges from popular opinion we do not allow them to be fired. The people can fire the person who put a judge on the bench, however, and hopefully we’ll know better next time.

But that doesn’t mean that nominations - or indeed, the judiciary as a whole - should be politicized. Politicians should be honorable and try to pick judges who are smart and will rule fairly, even if that means handing down some decisions which are politically unpalatable because sometimes that’s the best decision for our Constitution. For decades now, Republicans have prosecuted an elaborate campaign to exert popular and political pressure on the judiciary to overturn decisions they do not like. This is extremely harmful to the Constitution and to the nation because our very system of government is predicated on the judiciary protecting individuals and minorities from the will of the majority as exercised through the political branches. Unlike the current conservative assault on abortion rights and gay rights, the NAACP’s campaign to end the legal regime of segregation argued the legal theories case by case, lawsuit by lawsuit, until it was clear to fair-minded jurists that there was no room for Jim Crow in the Equal Protection clause, even though that decision was extremely unpopular and politically damaging.

While a Justice Alito on the Supreme Court may end up being a threat to certain constitutional rights (although it is not clear even with his arrival on the Court that there will be a majority in favor of overturning or severely limiting a woman’s right to choose), he really is not a threat to the Constitution. A Strict Constructionist will often limit the reach of the Constitution in the name of the plain meaning of the text, but the theory is as inconsistent as any other method of interpretation; and like other methods, it only rarely produces any result other than what the Justice wants to believe. Not even conservative credentials are a guarantee of a conservative court, as Justices are notorious for evolving on the bench. The Republican assault on the judiciary, on the other hand, has the potential to transform our Constitution into a justification for the tyranny of the political majority, which threatens all Americans as the winds of political change shift. The Republican Strict Constructionist judicial nominees are merely pawns in that larger, and much more damaging, game.