Ignoring the Constitution: it’s not just for Democrats anymore

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After tak­ing a shot at Rick San­to­rum about the appar­ent incon­gruity between his strict con­struc­tion­ist stance and his zeal for fed­er­al restric­tions on abor­tions, I was grat­i­fied to see that I was­n’t the only one to notice. The Volokh Con­spir­a­cy, one of the best law-ori­ent­ed blogs out there, today has a post by David Kopel point­ing out that San­to­rum and four oth­er Repub­li­can pres­i­den­tial can­di­dates have signed a pledge that states almost in the same breath that they will appoint strict con­struc­tion­ist jus­tices to the Supreme Court and that they will pro­mote and sign a law that almost cer­tain­ly would not sur­vive scruti­ny by such justices.

Of course, the title of this post is hyper­bole. in my life­time Democ­rats and Repub­li­cans have been equal­ly guilty of tram­pling on the Con­sti­tu­tion. But Repub­li­cans have almost a total monop­oly on com­plain­ing about about so-called activist judges who «leg­is­late from the bench». Adher­ents to strict con­struc­tion­ism (or more accu­rate­ly orig­i­nal­ism) ver­sus those who pro­mote the idea of the liv­ing Con­sti­tu­tion do, for the most part, fall neat­ly into groups along par­ty lines with the Repub­li­cans favor­ing orig­i­nal intent.

Dis­ap­point­ing­ly, of the can­di­dates who have declined to sign the 2012 Pro-Life Citizen’s Pledge, none have yet cit­ed con­sti­tu­tion­al con­cerns (Gary John­son has appa­rant­ly not com­ment­ed on the mat­ter.) Maybe they just don’t think it will play well with those they want votes from, but one would hope that at least some of the can­di­dates actu­al­ly under­stand the lim­its on the Enu­mer­at­ed Pow­ers that they are try­ing to enforce.

Published by splicer

5 Replies to “Ignoring the Constitution: it’s not just for Democrats anymore”

  1. If we had judges that

    If we had judges that actu­al­ly applied the Con­sti­tu­tion, we would­n’t have prob­lems with any politi­cian’s attempt to ignore it. So I am going to con­tin­ue to sup­port the con­struc­tion­ists – few as they may be.

    Dad

    1. Unstrict con­struc­tion­ism

      In prin­ci­ple I’m in favor of a some­what «liv­ing» Con­sti­tu­tion. The idea that we ought to inter­pret things as a rea­son­able per­son liv­ing in 1787 would have inter­pret­ed them has some pit­falls. In some cas­es I believe that the lan­guage was left unspe­cif­ic to lay down a prin­ci­ple that would be inter­pret­ed accord­ing to the situ­ta­tion of the day.

      We should not, for exam­ple, use the stan­dards of some­one in 1791 to deter­mine what fines are «exces­sive» or even what pun­ish­ments are «cru­el» («unusu­al» has its own set of dif­fi­cul­ties in inter­pre­ta­tion) in the Eighth Amend­ment. «Exces­sive» as an idea has the same mean­ing it did then, but the specifics have cer­tain­ly changed.

      I guess that leaves me con­sis­tent with the «orig­i­nal intent» camp but not the «orig­i­nal mean­ing» camp, so I’m still an originalist?

      The more I read about Con­sti­tu­tion­al law, the more I see there being a lot of room for rea­son­able peo­ple to dis­agree. And of course a broad swath of unrea­son­able opin­ion as well. It seems entire­ly rea­son­able that the Fourth Amend­ment endows indi­vid­u­als with broad pro­tec­tion of pri­va­cy in a wide vari­ety of cir­cum­stances. Turn­ing that around into a sep­a­rate right that isn’t list­ed and which offers broad­er pro­tec­tion based on the pos­si­ble inter­pre­ta­tion of the word «pri­va­cy» does­n’t seem war­rant­ed. Using «right to pri­va­cy» as short­hand for the first is accept­able. Mak­ing judi­cial deci­sions as though the words «right to pri­va­cy» were in the Con­sti­tu­tion is not.

  2. Con­truc­tion­ists and Oth­er Craftsmen

    Humor aside, I think any time we go with a “liv­ing” con­sti­tu­tion, we are going to be at the whim of the polit­i­cal winds of the time – and often will live to regret it.

    “Liv­ing” accord­ing to what? Major­i­ty rule/opinion? This is the very rea­son we have a Judi­cia­ry – to save us from our­selves. To be the cool­er heads when the major­i­ty knows not what it is doing.

    But let’s say that a “liv­ing” con­sti­tu­tion is “bet­ter”. How lib­er­al­ly? By what stan­dard? Accord­ing to whom? And again, we are back at the prob­lem of the major­i­ty [and the very rea­son this is a con­sti­tu­tion­al repub­lic and, thank­ful­ly, not a democracy].

    At the very least, those who are in favor of somthing oth­er than con­struc­tion­ism should be able to speak to the rea­sons for the aspects of the con­sti­tu­tion first and then why it should be exapnded/reinterpreted. I have yet to find some­one who can do so WHILE sup­port­ing a liv­ing constitution.

    Why?

    Because the reasons/principles that the Con­sti­tu­tion was writ­ten to pro­tect and/or pre­vent are still true to this day.

    And, you will note, that the sharp­er minds who are on the SCOTUS are those who are contructionists/originalists.

    If only I could get more poe­ple to read and under­stand the Fed­er­al­ist Papers before they vote again.

    *sigh*

    1. Intent or meaning?

      So are you argu­ing for orig­i­nal intent, ie inter­pret­ing it the way the author want­ed it to be inter­pret­ed, or orig­i­nal mean­ing, ie inter­pret­ing it the way a rea­son­able per­son would at the time of the rat­i­fi­ca­tion of the arti­cle or amend­ment in question?

      If the for­mer, I think we’re on the same page except per­haps for my unfor­tu­nate choice of the words «some­what liv­ing.» If the lat­ter, we have a disagreement.

      The prin­ci­ple behind the «liv­ing» Con­sti­tu­tion the­o­ry is that the framers inten­tion­al­ly wrote in broad terms, describ­ing prin­ci­ples rather than specifics. The smarter of the peo­ple in that camp point out that only our appli­ca­tion of those prin­ci­ples change, the prin­ci­ples them­selves cannot.

      There is, in my mind, a huge dif­fer­ence between the «evolv­ing stan­dards» of Trop v Dulles and the Com­merce Clause abuse of  Wickard v Fill­burn. What con­stitues «cru­el» pun­ish­ment should not be held to stan­dards for­eign to the mod­ern observ­er. That «reg­u­late Com­merce … among the sev­er­al States» cov­ers any con­ceiv­able act that might have an indi­rect effect on any­thing in anoth­er state is abhorrent.

      Am I wrong that these are two fun­da­men­tal­ly dif­fer­ent kinds of ques­tions, or is it just a mat­ter of degree?

  3. Trop vs. Dulles

    Regard­ing evolv­ing stan­dards, I’m for it.  But my father, Albert Trop, would be upset I think to know his Supreme Court vic­to­ry against the U.S. State Depart­ment and John Dulles would be used today to argue against the death penal­ty.  He taught us a man should take respon­si­bil­i­ty for his actions.  I’m against the death penal­ty, but he was the type of guy, I think, that thought a man should pay like wise for his crimes.  Of course, if he had lived longer he may have evolved too 🙂

    S. Trop
    Ham­burg, Germany

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