Constitutional scholar Richard Koss kindly forwards this NYT article (Sunday, Nov. 14, 2004), by Jeffrey Rosen, commenting on Pres. George W. Bush's professed predilection to appoint "strict constructionist" Supreme Court justices and federal judges.
These are supposed to be people who will follow the law and not impose their own personal values or morality on the rest of society. Only "Liberal," "Activist," judges do that.
They keep creating expensive new rights like privacy, contraception, abortion, rights for welfare recipients, rights for farm workers.
They create expensive new and rights for minorities who have been excluded from full participation in the economy and the schools that enable us to get a toehold on the economic ladder.
I suppose that even the densest of us, outside of the White House, realizes that there is no such thing as "the law" that exists in some never-never land outside of the personal opinion of the law writer, the judge, or legislator, who created it at some earlier time in response to some important "felt need."
Perhaps because we are able to write legal principles, rights, in the abstract without citing the author or circumstances out of which the right was first written, the President has been misled into believing that "the Law" was handed down by God or the Great Universal Law-Giving Machine in the Sky. The Great Non-Political Law-Giving Machine, that is.
If there is one thing that a Constitutional Law class should reveal, it is that every Constitutional Right on the books is the result of a hard-fought and hard-won great political battle, from setting up the Nation in the first place in the shape it took, to the abolition of slavery, the guarantee of free speech, separation of Church and State, and the criminal justice reform of the past half century, such as protection against unreasonable search and seizure (Mapp), the right to counsel (Gideon), the right not to be questioned by police absent counsel (Miranda), and many others.
Every Constitutional Law case ever decided has added to or subtracted from the sum of rights that exists to define our nation. Constitutional Law reveals the crystallized political attitude of the people who count most in this country. When that consensus realized that Jim Crow was killing the country in the eyes of ourselves and the world during the Cold War, we got our Statue of Liberty case, Brown v. Board.
Pres. Bush apparently wants his nominees to follow some abstract, non-politically generated body of law, the constitution as it must exist in the minds of a class of people out of tune with the individual rights protections of the past half century.
These folks appear dissatisfied with the man-made laws with which we're all too familiar, the law with the warts 'n' all that we live with and read about every day.
They want to roll the clock back to the days of the Lochner era (1905-1937) when it was the activist conservative justices who almost fomented a revolution by striking as unconstitutional costly economic and social reform legislation that protected the working man, woman, and child.
Measures such as workers comp, minimum wage, maximum hours, worker safety, labor union recognition, and abolition of child labor.
This is why Pres. Franklin Delano Roosevelt sought to pack the Court in 1937 with justices who weren't wedded to the idea of Laissez-Faire capitalism, that is, the idea that unrestricted capital investment and management ruled the world and the workers only lived in it at sufferance on beggar's wages.
Pres. Bush, I hate to be the one to inform you, but WE make the law, we don't FOLLOW some legal notion handed down by the Law-God. There IS no Law-God.
You should know that.
You sign the damn bills.
Passed by our elected substitute for a Law God, the Congress.
Are you using your best judgment or "following the law?"
Perhaps you think law-making works differently on the Supreme Court.
C'mon, who do you think you're kidding?
Us?
We're the Americans!
We didn't fall off the turnip truck yesterday any more than you did.
It's been a long time since Moses walked down from Mt. Sinai carrying stone tablets from God.
The Constitution was drafted by 55 mortals in Philadelphia. The Bill of Rights, the first ten amendments, were compiled from state charters and redrafted by James Madison to complete a political bargain.
Give us a Bill of Rights, said the Anti-Federalist patriots such as Patrick "Give me liberty or give me death" Henry and George Mason of Virginia, and we'll ratify your new Constitution. They opposed to too much central government power and not enough individual protection.
Ten of Madison's twelve proposed amendments were thus ratified by the original thirteen states and became effective to protect individuals against the federal government (but not the states; see Barron v. Baltimore, 1831) in 1791.
We've had to struggle to make sense of every right prescribed in the Constitution ever since.
At least, however, the responsibility is ours, not God's, to use our uncommon sense and best judgment. One doesn't do that by being a "strict constructionist," i.e. by masquerading behind a political shibboleth, which is what "strict construction" is, to achieve for stingy partisan political purposes, cutbacks on rights when interpreting a nation's constitution.
When interpreting a nation's constitution, the same rule should govern us that governed John Marshall: Interpret it broadly, meaning liberally, to insure that national goals are capable of being met.
"After all, it's a Constitution we are interpreting." Marshall, in Marbury, 1803.
Would you want to see appointed to the U.S. Supreme Court a justice who was blind to the idea that the reason we want him (or her) appointed is because we think his judgment is good enough to avoid depriving people of their right to fair treatment under existing law, statute and case law, based on a sensitive understanding of right from wrong?
Someone with the heart to aim for the higher value rather than the baser?
Pursuing a vision of national goodness, not of keeping people down?
There are plenty of brainy idiots.
For the U.S. Supreme Court we need good hearts as well as good minds.
"Strict Construction" is conservative political code, Republican political code, for "HEARTLESS."
I have trouble seeing heartlessness as a true conservative value. Conservative does not mean heartless, stingy and Scrooge-like when it comes to recognizing human, that is individual rights and liberties.
This country was built on Liberty, not Heartlessness.
Liberty is the goal.
Heartlessness is the disease we must avoid.
Aren't these conservative ideas?
Aren't there progressive conservatives?
Compassionate conservatives?
Conservatives with heart?
In this White House?
Now that Ashcroft no longer attends Cabinet meetings?
I'd like to see the evidence of it.
But all I read about are Vice President Dick Cheney and Chief Political Architect Karl Rove whispering in the President's ear, "Ignore Those Liberal Assholes."
I wish I had more confidence in Pres. Bush's ability to think things through and put his thoughts into his own words. Often I'm left with a bad taste after listening to what he says, thinking he's simply mouthing words put there by some of the legal arch-conservatives in his administration. I have no confidence he knows what "strict construction" has meant in the life of our nation.
"Strict construction" is a term that goes back to Thomas Jefferson and South Carolina's Sen. John C. Calhoun when it came to issues of, first, whether the U.S. should have a national bank. McCulloch v. Maryland, 1819, and later agitation against slavery.
You can access information about Sen. Calhoun, slavery's chief spokesman, state's rights man, and nullifier extraordinaire, here.
Strict constructionists then were first, opponents of a national bank, and later slave owners and sympathizers who feared giving the national government too much power, for fear that if given too much power, it could override the states on slavery. Banks, to Jefferson and his followers, represented a centralization of wealth in the hands of a few wealthy investors and speculators. This was seen as a dishonest way to extract wealth at the expense of the honest yeoman farmer. Wealth, followed inevitably by political power, should be distributed, de-centralized, not concentrated among a few bank shareholders to the exclusion of the real people doing the nation's work and creating its wealth, the honest farmer. That was the attitude of the Jeffersonians.
The Hamiltonians, or Federalists, by contrast, favored the view we associate more with Wall Street today, pro-investment, pro-capital, pro-business, anti-regulation, centralized national power to protect shipping and investment, etc. Government as business, and business as government.
Or, as Engine Charlie Wilson, the Chairman of General Motors famously said in more modern times, "What's good for General Motors is good for America." In other words, legislation favoring Chevrolet was good for the country, so stop regulating car safety, fuel efficiency, protection of labor unions, and other reforms.
Strict construction was political-legal code for pro-slavery, fear of northern anti-slavery, and abolitionist sentiment becoming law.
"Strict construction" meant "states rights," also code for pro-slavery and the right to nullify not only unpopular tariffs in the South (see the 1828 Tariff of Abominations that was costing the south money, since they imported highly taxed manufactured goods from England, while the North made their own), but anti-slavery legislation as well.
"States Rights" meant Nullification, the alleged (by Sen. John C. Calhoun and the South) power of a state to nullify legislation it disliked, such as tariffs (taxes on imports the South depended on) and anti-slavery laws that might be passed by Congress. This doctrine is so pernicious to continued national government, to Union itself, that slave-owning President Andrew Jackson himself put down a Southern nullification move against tariffs in 1833, coming down strongly on the side of maintaining the Union, with the Force Act.
Pres. Abraham Lincoln was the next president to confront states rights because when he was elected in 1860, the South walked out of the union, seceding, eleven states. It took a four-year war costing 680,000 lives on both sides, to decide the issue of union, states rights, nullification, and secession.
Grant v. Lee (1865), in other words
The South was afraid of national power. "Strict construction" of the Constitution, backed by the threat of secession, were its principal weapons.
How serious was this Southern fear? The South was paranoid over this fear, to the point of apparent psychosis.
The slightest suggestion that slavery was evil was taken personally, as it should have been.
Criticism of slavery meant that slave owners and their supporters in the South were practicing and supporting evil and therefore were evil themselves. The result was fury. Southern "honor" was being impugned, the South felt, which it no doubt was.
One southern representative or senator beat, with his walking stick, Charles Sumner of Massachusetts on the floor of Congress over his opposition to slavery, incapacitating him for three years.
Blacks who failed to show the slave's enforced and accustomed deference to Southern whites, even after the Civil War, were summarily shot on the spot, with impunity, so deeply ingrained was this craziness of alleged white supremacy. See Eric Foner's Reconstruction, America's Unfinished Revolution, 1863-1867, Harper & Row (Perennial) 1988.
In McCulloch, supra, the bank case, Chief Justice John Marshall, writing for the Court, held that the "Necessary and Proper Clause," Art. I. Sec. 8, Cl. 18, meant that the national government had been granted the power to exercise all of its enumerated powers through any legislation that was appropriate to achieve the goals of a national government, so long as not prohibited elsewhere in the Constitution. In the Bill of Rights, for example.
Marshall thus opted for what was then called a broad or "loose construction," of the Constitution, overruling in the process the argument of the Jeffersonians that only a strict construction was properly allowed. The Jeffersonians felt that since nowhere in the Constitution is the word "bank" mentioned, a strict construction confined to the original text of the document would keep a national bank out of the country. They would protect their political interests by cramping the interpretation of the Constitution by construing it strictly.
The Marshall Court, incidentally, realized how important this decision in McCulloch was going to be to the nation. While today both sides arguing before the Supreme Court are given an hour to share in addressing the justices, argument in the Bank case lasted for five days. Marshall appointed Daniel Webster, the greatest orator and corporation lawyer of his day, to represent Maryland's position against the Bank, since Maryland had declined to appear, apparently in the view that the Court had no power over it in this case. Webster and Maryland, lost. The Nation won.
Later, after the terrible experience of the War of 1812 against Britain, under Pres. James Madison, partly the result of not being able to finance the war without a proper national bank, Madison, a former strict constructionist opposed to the First Bank, agreed to sign into law the Second Bank of the U.S..
Strict constructionist Thomas Jefferson quietly forgot about strict construction when he made the Louisiana Purchase from Napoleon, who needed the $15 million to fight in Europe. There was nothing in the text of the Constitution then or now that expressly authorized the purchase of new territory.
Since the Constitution itself does not say whether its provisions should be interpreted strictly or loosely, it was up to Marshall and the Court to use their best judgment, wasn't it.
Absent controlling guidance, the Court, meaning the justices, had to use their best judgment, the very thing Pres. Bush thinks is evil.
Without Marshall opting for loose construction, Bush wouldn't be presiding over much of a country.
Loose construction is what made this country, to put it in Con-Law terms.
Government as a result has been able to provide an environment that allows business to thrive.
I would like to see a study of the effect of "loose construction" decisions on the ability of the nation to develop. Take Brown v. Board, rejecting "separate but equal" in favor of "separate is inherently unequal." The effects are incalculable, in favor of the national good. Brown was the opposite of a strict construction decision. Dred Scott was strict construction gone mad. Or loose construction gone wild.
I don't think the evil is in whether the act of interpretation is characterized as "strict" or "loose." The evil is in cutting out the heart of humanity, the soul of the Nation, regardless of characterization as strict or loose.
This is what Constitutional law is about in the United States, the soul of the Nation and the heart of its humanity.
This is why, if Constitutional Law doesn't get your dander up, you're not getting it.
See the student comment below, which prompted not only the above line, but along with the Jeffrey Rosen article, this whole discussion.
Without a central bank and regulation of industry, we'd still be operating in sweatshop conditions with rampant currency fluctuations for lack of a centralizing, governing mechanism over the money supply.
It would be pre-1929 boom and bust cycles in perpetuity.
One point of this history is that "strict construction" as a doctrine is ALWAYS A STRAW MAN.
A "straw man" is a boogie-man type argument that set up for the purpose of easily knocking down. The form argument is to the effect that adoption of this measure will result in the worst case imaginable occurring, causing the sky to fall, and you certainly don't want that to happen, do you?
Of course not.
But adoption of any measure can be abused and we don't usually tolerate the worst case scenario happening. It's a form of slippery slope argument, used to frighten the easily frightened, the naive.
Bush claims to want strict constructionist judges not because new rights for the needy are costly and bad, but because the Constitution needs to be protected from being distorted. We can't have judges finding things in the Constitution that aren't expressly written into it by the Framers in 1787, like banks, the Louisiana Purchase, economic social and reform legislation, anti-slavery laws, privacy, Civil Rights laws that protected blacks, abortion rights for women, and equal rights under law for gays.
All these are he ill-advised handiwork of activist, liberal justices of the Supreme Court.
"Strict construction" today is code for something other than anti-bank and anti-abolition of slavery.
Mr. Koss has commented that Pres. Bush's stated position on strict construction seems to have gotten my dander up, to which I've replied:
"If Constitutional Law doesn't get your dander up, you're not getting it!"
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The NYT Article is here, and posted for your convenience below:
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November 14, 2004
Can Bush Deliver a Conservative Court?
By JEFFREY ROSEN
ASHINGTON — At a press conference two days after his re-election,
President Bush was asked about what sort of Supreme Court justice he might nominate if and when the ailing Chief Justice William H. Rehnquist retires. Mr. Bush repeated the pledge he made in the presidential debates: "I would pick people who would be strict constructionists."
Liberals fear that "strict constructionists" - those who believe the Constitution should be read literally - would ban affirmative action, resurrect school prayer, dismantle the regulatory state and overturn Roe v. Wade.
And President Bush has done nothing to ease their fears. Last week, he named Alberto Gonzales as his new attorney general, reportedly to shore up Mr. Gonzales's conservative credentials for a future Supreme Court vacancy.
By promising to appoint strict constructionists, Mr. Bush has embraced the mantra of every Republican president since Richard Nixon, who first made that promise in his 1968 campaign. Yet Republican presidents have largely failed in their efforts.
In the last 36 years, four Republican presidents have appointed all but two of the current nine justices.
But on the most contested social issues - abortion, affirmative action, school prayer and gay rights - the court has sided with liberals, while only modestly advancing the deregulatory agenda of the Republicans.
"If the goal of Republican presidents was to build a court that exercised its own power with greater restraint or adhered strictly to the original constitutional text, then they have clearly failed," said Thomas Keck, a political science professor at Syracuse University and author of "The Most Activist Supreme Court in History."
Can President Bush do better than his predecessors? There is every reason to believe he can. Over the last three decades, the definition of "strict constructionism" has been refined to coincide more precisely with the political goals of its adherents, allowing fewer surprises among a conservative farm team of lawyers and judges.
The phrase is surprisingly malleable. "I've never believed in the term strict constructionist," said Charles Fried, who was solicitor general under President Ronald Reagan. "I've thought it was a code word for I'm not sure exactly what."
When Nixon first used the phrase "strict constructionist," he seemed to have in mind justices who would slow the Warren court's expansion of the rights of criminal defendants, as well as end court-ordered school busing. By these standards, he succeeded.
But Nixon's justices did not reverse the Warren court's expansion of individual rights. Three of his appointees, Justices Warren Burger, Lewis Powell and Harry Blackmun, proved to be moderate conservatives, who sided with liberals in cases involving school prayer, affirmative action and abortion.
By the time Ronald Reagan became president, conservatives were all the more determined to roll back their judicial losses.
"In the 1980's, you could say politically that strict constructionism was used as a code word for opposition to Roe, or the prayer-in-schools decision, or affirmative action," says John Yoo, a law professor at University of California, Berkeley, who until 2003 led President Bush's Office of Legal Counsel.
Conservatives set out to develop a constitutional methodology that would ensure that the liberal decisions of the Burger and Warren courts were overturned. In 1985, Attorney General Edwin Meese III gave a famous speech, declaring, "We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment."
After Mr. Meese's speech, "originalism" rather than "strict constructionism" became the judicial buzzword of the 1980's. Still, the effort by President Reagan and the first President Bush to appoint "originalist" judges had mixed results. After the Senate rejected President Reagan's nomination of Robert Bork in 1987, only two of the five Republican appointees - Antonin Scalia and Clarence Thomas - called themselves constitutional "originalists." Three justices - Sandra Day O'Connor, Anthony Kennedy and David Souter - did not. Partly as a result, the Rehnquist court once again sided with liberals in the culture wars.
In the 1990's, during the Clinton era, conservatives redefined strict constructionism once again. They focused on areas like deregulation, choosing cases they could realistically win in the courts. "There was less political resistance to the court's federalism decisions than abortion and school prayer, because they're less on the radar screen," Professor Yoo said.
In 1995, Douglas Ginsburg, a federal appellate judge whom President Reagan tried unsuccessfully to nominate for the Supreme Court, wrote an article calling for the resurrection of what he called "the Constitution in exile," by which he meant strict constitutional limitations on federal power that were abandoned after the New Deal. In that article, Mr. Ginsburg wrote that he never expected these forgotten doctrines to be resurrected in his lifetime.
But his article coincided with the beginning of the so-called federalism revolution on the Rehnquist court. In 1995, for the first time since the New Deal, the court said there were limits on Congress's power to regulate interstate commerce. And since then, the court has struck down 33 federal laws. During its first 70 years of existence, the court invalidated only two.
Nevertheless, the federalism revolution hasn't quite delivered what conservatives hoped. Each time the court's strict constructionist justices have appeared on the brink of striking down environmental laws or health and safety laws, the moderates, Justice O'Connor and Justice Kennedy, have stepped back from the brink. They are less willing to overturn 60-year-old precedents that might strike at the core of the regulatory state.
"If the 'Constitution in exile' were taken seriously, a lot of environmental regulation could be under attack, occupational safety and health regulation, even possibly some securities regulation," said David Strauss, a law professor at the University of Chicago. "Minimum wage and maximum hours laws? You never know."
Today, when President Bush says he wants to appoint strict constructionists, he seems to have in mind justices who subscribe to the "Constitution in exile" movement. Indeed, former administration officials say all of the names on Mr. Bush's short list for the Supreme Court are considered strict constructionists who are closer to Justice Scalia than to Justice O'Connor.
"An entire generation of lawyers have been reared and trained in Justice Scalia's philosophy," said Jack Goldsmith, a professor at Harvard Law School, who led the second President Bush's Office of Legal Counsel after Mr. Yoo. "So the Bush administration is likely to be more successful than its predecessors in finding reliably conservative nominees."
Still, it would be wrong for any administration to be too confident about imposing its vision on the court. "What history has tended to show isn't that justices change their stripes," Professor Strauss said. "It's that issues change from underneath the justices. Nixon never could have imagined that Roe v. Wade would be such a big issue. We don't know what the next set of issues will be over the next few decades, and if Bush fails to get the kind of strict constructionist he expected, that's why he'll fail."
Jeffrey Rosen is the author of "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age."
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