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

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.



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.


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.

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.


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.


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?

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