The strict constructionists find excuses to reverse the social contract of the last 220 years, by saying “Well, it might be nice, but it is not in the Constitution.” That philosophy not only might give us the loss of any federal help on the rights to clean air, clean water, safe food, and safe working conditions … all of which, please recognize, are already targeted by the Teaparty. The particular decision on Obamacare surprised observers in several respects. After the constructionists were impressed by the silly broccoli metaphor during oral argument, the betting odds turned against a decision allowing the program. The decision for it was a bit of a surprise, but not as surprising as its justification – Roberts' decision allowed the program, but built in an argument to weaken a rather old precedent for federal use of the commerce clause.
Not long before, the 2010 decision on Citizens'
United expanded the
scope of corporations. This becomes more alarming when you
consider that the newer rights and entitlements (220 years of social
contract) were, often, necessitated by the size and scope and social
heedlessness of the corporations that employ everyone – Today's
economic and material status quo stands in strong contrast to the era
of the Founding Fathers when 80% of the population farmed.
There is one Constitution of 7 Articles and 27
amendments, but that is not the whole of our “constitution”.
There are laws and interpretations and the principle of stare
decisis, which says, “no arbitrary changes from the past.”
It seems to me that modern Supreme Court justices follow stare
decisis most of the time, because there is no problem; but any of
them are willing to overturn precedents. In their respective
confirmation hearings, Sotomayor and Kagan each argued convincingly
that “judicial activism” is simply not a useful concept.
The record shows that, yes, for a couple of decades
after WW II, the liberal issues, supported by liberal justices,
showed more apparent activism, but for the last couple of decades, it
has been the conservative issues and justices who overturn more
decisions. So, “being active” is not the criterion for the folks
who still object to judicial activism.
Decisions are built not only on previous law, but
also on understandings of science and philosophy that may go on for
pages in a crucial decision. So the Constitution includes the
original text with the Bill of Rights, later amendments with short
changes, and important decisions, some of them with explanations. The
philosophy of the Founders is taken into special account – the
Declaration of Independence is a second document that is often taken
as being important for widening the jurisdiction of the Constitution,
to include a larger set of hopes and promises... and more federal
power. The Constitution is an important anchor, but it is just a
starting place for what we believe and what we follow.
I was surprised when I first heard a discussion of
the United Kingdom being a "constitutional monarchy". This
seems to be an useful and meaningful description, in spite of the
fact that that country has no written constitution. It does have an
on-going, consistent process, and they do have a very similar,
resulting, rule of law that "governs" the government. When
courts rule on the Constitution, more history is implicated than
merely the words of the Constitution.
In the Dred Scott case in 1857, Justice Taney hoped
to end the long-festering disputes about slavery. The idea of “all
men being created equal” bumped up against a contradiction, in
slavery. Of course, that "equal" phrase was in the
Declaration, not the Constitution... Should it matter? Lincoln's
Gettysburg Address pointed back (“four scores and seven years”)
to the signing of the Declaration, but his argument helped to create
that modern opinion that the Declaration should matter. The issue in
Dred Scott was, Did a Northerner have to return a slave?
Taney wrote an opinion that decided “Yes”, based
on revised "fact" – He concluded that those African
American slaves were not to be considered human beings. So they had
no rights. This left the South with their preferred version of laws,
and left many in the North outraged. I wonder if the Civil War would
have arrived even sooner if that decision had fallen the opposite
way. On one side or the other, many laws would need to be changed.
The Court took the course of establishing a particular “fact”
that made it natural to review, to declare (even) some old laws to
have been unconstitutional. The decision did so. (I don't know what
Taney would have done about free blacks in the North.)
Taney argued that the people at the time of the
founding of the country did not recognize blacks as people. As I
read it, he was the first practitioner of construction by “original
intent.” Basing a decision on “revised fact” is generally less
offensive to stare decisis than a new version of law based on
old facts. Taney's serious error is that the facts he used were
already, in 1857, too far from true.
In Plessy v. Ferguson, 1896, the court faced a
question of whether “separate but equal” treatment of blacks
would meet constitutional standard for equality. This time, the
court settled for a sociological “fact” of great dubiety. Could
any parade of facts have shown where separate was equal, to a
rational and fair audience?
Brown v. Board of Education, 1954, was explicitly
based on a review of facts, documented especially in a sociological
text by Gunnar Myrdal. Separate had not been equal. Laws needed to
change, to recognize that the whole slew of Jim Crow legislation of
50-plus years was inherently not-constitutional. The SC did face up
to the contradictions. The new facts mandated change, to enforce the
constitutional guarantee of equal rights. Schools were the prominent
target of immediate change.
These are examples of how facts affect law in civil
rights. The provisions for “equality” in the Declaration of
Independence, reinforced by explicit instructions in the 14th
Amendment, gave the national government an enormous new scope of
activities to overcome injustices and promote fairness. Other
phrases have seen expansion of protections, freedoms and
“The facts” are relevant; accept that the scope
of laws can be expanded as a logical consequence. Here are several
more, in very few words.
Eisenhower's building of the Interstate Highway
System was justified by these "facts" – national
security and national defense needed the ability to move soldiers and
materiel across the country. And it needed healthy citizens to fill
the ranks of an army. And there is the commerce clause that permits
expansion of activities in many ways never dreamed of by the
founders, who never knew any "national corporation." The
health of the citizenry depends on clean air and clean water.
The constitution evolves. The new decisions become
part of the wider constitution that is to be preserved.
I think I learned an important legal distinction
between "facts" and "law" during the news
coverage of the Appeals decision on California's Prop. 8 (gay
marriage). The judge made summaries in those two categories,
including 81 findings of fact. Reportedly, the SC would be almost
forced to accept the judge's conclusions of fact, while they would be
free to dispute his conclusions about how previous law - in this
case, the Constitution - should be applied.
The daily coverage of the case indicated that the
opponents of gay marriage leaned heavily on facts that were bar-room
rambling (or, chat-room, these days), and history that either was
a-historical or not relevant. The customs of the 1780s are not part
of the constitution, but they did inform the writers. Men had
rights, women and children did not. Women and children were chattel,
and could own nothing. Those are facts that have changed.
Sociology may describe a tiny role for teen-revolt,
but modern biology says that same-sex attraction is not a sinful
choice, but (if you want this language) is the way God made some
people. Competent science says that people who are homosexual are
not notably criminal or insane. The defenders of Prop. 8 were
reduced, it seemed, to admitting something like, "I read it
somewhere on the internet."
Once the old-time asymmetry of marriage is removed
(done! in the minds of the younger generation), there seems to
be full justification for extending legal status, rights,
protections, etc. The legal rulings from California generated great
optimism on the gay-marriage side. The SC would have to do a large
amount of legal twisting to avoid the natural extension of rights.
I used construction of the Constitution with
forethought about the Teaparty mantra of "strict construction";
and about the 3 justices who endorse some version of original intent
and strict construction.
What is strict construction? – adhere to the
words that are written, and nothing else, using original intent,
perhaps, as construed from either the authors of the Constitution, or
the legislators, or the people of the time, by making use of old
dictionaries when necessary. Mix-and-match to get conclusions that
Theoretically, it ought to be possible to come up
with a consistent interpretation that way, given time to develop it.
In practice, strict construction (to me) has been an excuse for
self-indulgent decisions with a so-called conservative flavor: It
serves as an excuse to pretend that no science exists beyond the 18th
century, no new rights and entitlements; there are no new items of
social contract embodied in 220 years of decisions. In other words,
they have a program of radical retrenchment, not conservation.
Because they grant themselves so much leeway, I am never too
surprised at whatever those justices will decide.
The arbitrariness of strict-construction
decision-makers is promoted by the novelty of their doctrine. Each
Justice can choose to carve a path without much critical feedback –
they are the defining authorities. The arbitrariness of their
outcomes is illustrated by their disagreements on where "strict
construction" leads them. I read documentation on that in a book
praising Clarence Thomas.