So This Is What It Means To Be A Strict Constitutionalist

By Justin Gardner | Related entries in Constitution, Law, Supreme Court

This is why I can never get on board with judges like Scalia. Is he a smart guy? Of course. But the following? Not so much…

From Callawyer comes this Q&A:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Here’s what the 14th Amendment says regarding equal protection…

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

How can you read the above and not see that it was written broadly so it could be applied broadly? Of course gender isn’t referenced. But why has judge after judge after judge referenced this to strike down law after law after law that seeks to discriminate against nearly any person or group? The idea that we’d have to legislate sexual discrimination on a state by state basis is insane.

But here’s why I take issue with strict constitutionalism: it seems to be anything but. Scalia says above, “Nobody ever thought that that’s what it meant. Nobody ever voted for that.” Okay, fair enough. So how can Scalia square those statement with his use of the equal protection clause in Bush v. Gore where he argued that different standards of counting ballots violated the amendment and infringed Bush’s rights? And before you twist yourself into a pretzel trying to explain why it’s okay for that case and not discrimination cases…save your breath. Or, well, you can try, but you’re just proving my point…that we all interpret things differently and the overwhelming consensus is that the 14th amendment prohibits discrimination on the basis of who you are in a very broad sense.

Oh…and newsflash…the Constitution isn’t a perfect document. And guess what? The Founders knew that. That’s why they made sure it could be amended. That’s also why they established the judiciary…to sort through the subsequent questions that would arise.

Still, if you want more reasons why Scalia is just plain wrong, read what Jack Balkin has to say.


This entry was posted on Tuesday, January 4th, 2011 and is filed under Constitution, Law, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

13 Responses to “So This Is What It Means To Be A Strict Constitutionalist”

  1. Tweets that mention Donklephant » Blog Archive » So This Is What It Means To Be A Strict Constitutionalist -- Topsy.com Says:

    [...] This post was mentioned on Twitter by Justin Gardner. Justin Gardner said: DONKLEPHANT: So This Is What It Means To Be A Strict Constitutionalist http://ow.ly/1aJ0jU [...]

  2. Chris Says:

    The constitution is open to interpretation and how it is enforced is set completely by precedent. Calling yourself a constitutionalist is fairly meaningless.

  3. Tully Says:

    More like what it means to be a strict constructionist.

    So how can Scalia square those statement with his use of the equal protection clause in Bush v. Gore where he argued that different standards of counting ballots violated the amendment and infringed Bush’s rights?

    Easy. Voting actually falls under the direct intent of the original legislation that the 14th was enacted to backstop, the Civil Rights Act of 1866.

    The idea that we’d have to legislate sexual discrimination on a state by state basis is insane.

    It is today. In 1868 not so much, as that’s what actually happened over the next century. Not that I agree with Scalia’s take, but I do understand the POV and it is internally consistent. So is Balkin’s, and I’m not on his side either. I vote we put them in a Death Cage Match and make book on the winner. You want the concessions or the gate? :-)

  4. kranky kritter Says:

    There’s one thing that I have learned about constitutional law as it relates to discussions about it on blogs. It’s this: if you know very little about the history of rulings and precedents and ongoing arguments, you’re liable to end up sounding like an idiot talking out his ass.

    High ranking justices and other legal scholars have by and large made it their life’s work to understand all that stuff. People who don’t truly respect that are ignorant douchebags. When I have taken my time to dig into the real nuts and bolts and history, it has been quite rare that I have found that, for example, a scotus justice has made an argument that lacks internal consistency or a serious consideration of relevant past rulings.

    The constitution was drafted to have real force. And it has real force. That it is in some instances open to interpretation does not mean that it lacks meaning or force aside from how we choose to interpret it. That’s just silly.

    I think it’s a sad, lazy, ignorant mistake for progressives to dismiss and ridicule folks who are trying to position themselves as constitutionalists. Instead, they should fight the battle in terms of offering a sounder way to respect and revere the constitution. The closer anyone comes to saying that the constitution can evolve to mean whatever we’d like it to mean, the more sure I am that they lack any understanding of the fragile nature of what humanity has managed to achieve.

    I think the Constitution of the United States of America is fu*king awesome. It totally rocks. I like it better than the bible, baseball, motherhood, and apple pie. America would be just another lame, sad sack, unpredictable, spoils-driven banana republic without it. This does not, of course, mean that I am therefore committed to the letter of the law over its spirit, as some of our more addled self-described constitutionalists would have it.

  5. Chris Says:

    A group of state legislators opposed to illegal immigration plan to propose a legislative “fix” Wednesday that would prevent children of illegal immigrants born in the United States from being citizens, a spokesman said.
    The group, State Legislators for Legal Immigration, will reveal their strategy at a Wednesday morning news conference at the National Press Club in Washington, Ty McCauslin said.
    The coalition counts members from 40 states. It argues that the 14th Amendment has been wrongly applied to so-called “anchor babies.”
    The 14th Amendment says that “all persons born … in the United States” automatically become U.S. citizens.
    The group’s proposal “is to fix the misapplication of the 14th Amendment as it applies to the children of illegal aliens,” McCauslin told CNN.
    The group would not divulge additional details of the proposal before it is officially announced, but said that there would be several constitutional scholars on hand to vouch for its legality.
    Besides unauthorized immigrants, no other group would be affected by the proposal, the spokesman said.

  6. Chris Says:

    ^ Apparently the 14th has been wrong all along! Who knew?

  7. Tully Says:

    Chris: There actually are precedents in US, common, and international law that say that the principle of jus soli has some major exceptions pertaining to foreign nationals. The 14th itself contains THE major exception, though it (IMH non-attorney O) pretty much only applies to foreign nationals in diplomatic service and their families.

    Those going with the “misapplied 14th” explanation, claiming that children of foreign nationals (including illegal immigrants) are not citizens just by being born here under the doctrine of jus soli, have a very tough climb ahead indeed. SCOTUS already ruled against them over a century ago in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Pretty much, if you’re born here and your parents are not here as as agents/diplomats of a foreign nation, you’re a citizen.

    I suspect the coalition you speak of will, if they actually ever get their legislation passed, find that the broad jus soli doctrine expressed in the 14th is not so easily modified. I believe it would take actual modification of the Constitution itself by amendment to do so.

  8. kranky kritter Says:

    My thoughts exactly. This whole effort is quite ignorable from the start unless its end result is to amend the constitution. The game has already been played and lost.

    What a sad waste of time, resources, and passion.

  9. Tillyosu Says:

    Actually, I tend to agree with Justin on this one and disagree with Scalia…at least as it pertains to the 14th Amendment. Scalia is trying to use the intent of the legislators as a proxy for the text of the amendment. The wording of the 14th is indeed broad, and the intent of the legislators in passing it, as far as it can be discerned, cannot narrow it. I also assume that Justin agrees that the 14th should be applied broadly when it comes to….say…whites and affirmative action.

    But the converse is also true, the intent of the legislators cannot broaden the text of legislation if it is worded narrowly. In addition, the intent of the legislators cannot be used to create words where none exist. In this, I agree with Scalia. The right to abortion, indeed the right to privacy on which it is based, is found nowhere in the Constitution.

    Instead, it is found within the “penumbras” and “emanations” of other consitutional protections. Okay fine, but what exactly is NOT within the “penumbras” and “emanations” of the Constitution? In other words, what are we as a people, acting through our elected representatives, NOT allowed to do because of this supposed prohibition…that we never voted on?

    The reason that many Americans have such a visceral disdain for judicial activism like this is because it is ultimately corrosive to the practice of democracy. If a judge can strike down a popularly enacted provision citing “penumbras” and “emanations,” then he can essentially defeat the will of the people with no legislative authority whatsoever.

    Now do I believe that a right to privacy should be included in the Constitution? Of course. But what that means is that we as a society have to have a public debate to decide what the vast majority of believe is the definition of privacy actually is. Does it include abortion? Does it include sodomy? These are all questions that the people have not answered, but that the Judiciary has seen fit to answer for us. This is included, that is not. I consider myself strict constructionist simply because I want to protect the practice of democracy.

    “But our society and values change, and we should have a governing document that changes with it.”

    Actually, no we shouldn’t. The Constitution is very hard to change. THAT’S EXACTLY THE POINT. It should only reflect core values that are widely accepted among the people. It shouldn’t be subject to temporary changes in public mood, and certainly not judicial whim. If the Constitution means whatever some Judge wants it to mean, then it means nothing at all, and the power that we hold to govern ourselves is only an illusion.

    And before you label me some paranoid conservative, consider that Thomas Jefferson also recognized the threat posed by judicial activism:

    “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little to-day and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”

    Indeed.

  10. kranky kritter Says:

    The reason that many Americans have such a visceral disdain for judicial activism like this is because it is ultimately corrosive to the practice of democracy. If a judge can strike down a popularly enacted provision citing “penumbras” and “emanations,” then he can essentially defeat the will of the people with no legislative authority whatsoever.

    I’ve heard lots of people say stuff like this. I am happy to agree that if a judge is just wholly making stuff up, then he or she really is corroding our system. But I think it’s a big leap to claim that’s actually what has been happening.

    Now do I believe that a right to privacy should be included in the Constitution? Of course. But what that means is that we as a society have to have a public debate to decide what the vast majority of believe is the definition of privacy actually is. Does it include abortion? Does it include sodomy? These are all questions that the people have not answered, but that the Judiciary has seen fit to answer for us. This is included, that is not. I consider myself strict constructionist simply because I want to protect the practice of democracy.

    I totally agree that we’d all of us be much better served with an explicit constitutional declaration of our individual privacy rights. I don’t disagree with the idea that the constitution can be taken to have implied this right. But bottom line, we’re on very shaky ground on many matters because of a lack of a real legitimate enumerated right to privacy.

    “But our society and values change, and we should have a governing document that changes with it.”

    Actually, no we shouldn’t. The Constitution is very hard to change. THAT’S EXACTLY THE POINT. It should only reflect core values that are widely accepted among the people. It shouldn’t be subject to temporary changes in public mood, and certainly not judicial whim. If the Constitution means whatever some Judge wants it to mean, then it means nothing at all, and the power that we hold to govern ourselves is only an illusion.

    I agree with the idea that the meaning of the constitution should not change freely, subject to nothing more than the imagination of a few judges. But I don’t believe that we actually have experienced a constitutional history where the meaning has changed based on nothing more than whim. I think the greater part of the quite limited evolution of its meaning has been untroublesome. Kelo I would but in the troublesome category, though.

    My take is that bebopping and scatting should be rare, but is acceptable and even preferable on occasion. It’s definitely risky, but as a matter of pragmatism, I can live with it within reason. And that’s what the law has done so far, live with it, within reason.

    For example, a famous and now utterly accepted ruling was based on the “from whole cloth” declaration that “separate is inherently unequal.”
    That’s not even strictly true, let alone in the constitution. But who argues we are not better for it?

  11. Tully Says:

    Far be it from me to defend Scalia (especially when I think he’s off-target) but he’s not a defender of original intent. He is a defender of original meaning awithin the legal context at time of the writing, of what the words themselves actually meant in law in the context of the laws and legal system as they existed when they were written, not of what they were intended to mean in the secret minds of the gang of legislators who wrote them. It’s a reasonable and real distinction: The former can be determined with great historical accuracy, the latter requires a skilled medium with extensive afterlife connections.

    In any case, Balkin sniping at Scalia ain’t new. They have different judicial philosophies, and Balkin never tires of being a prick with anyone who doesn’t agree with him on the “living constitution” doctrine. Scalia is certainly the most visible opponent of that doctrine, and Balkin one of the leading and most vocal proponents of it. If anyone is guilty of reading intent into the 14th here, it’s Balkin, by his own admission that under the “living constitution” doctrine judges should try to fathom whether new situations fall under the intent of the writers of the statute even when the words of the statute themselves do not indicate it.

    I still think it would be more fun to lock them in a room with weaponry and let them fight it out. And maybe, you know, lose the room key for a few weeks. Just to be sure.

  12. Tillyosu Says:

    I think the greater part of the quite limited evolution of its meaning has been untroublesome

    I actually don’t agree. Particularly when it comes to the Commerce Clause. I think that the expansion of congressional power and authority under the Commerce Clause has been extremely troublesome, even alarming. And the dangerous part, is that it is indeed an evolution. It didn’t just happen with one sweep of the pen, with one decision. It happens little by little, over a great period of time, decision by decision which seem perfectly reasonable by themselves at the time, but when taken in the aggregate have radically altered the balance of power in the nation. (See Thomas Jefferson above)

    That’s not even strictly true, let alone in the constitution. But who argues we are not better for it?

    I’m not arguing that we aren’t better off for some of these decisions, I’m arguing that writing a decision which has no basis in law, no matter how justified, how needed, or morally right is inherently dangerous. It’s dangerous because it sets a precedent that can be used when the cause isn’t so justified, needed, or morally right.

  13. kranky kritter Says:

    I think “has no basis in law” is for the most part an exaggeration of what SCOTUS has done over time.

    That said, I absolutely 100% agree with you that it’s inherently dangerous to stray from the existing hard copy clarity of the rules as written. There is absolutely the potential for making a misstep whenever a step is taken. That is so undeniable as to be a truism.

    You’re advocating for the alternative of almost never ever taking a step unless every single conceivable box has been checked off. Don’t clobber me for this: The conservative bias is usually, in general, a bias for stasis over change. Be careful, go slow, let’s be sure. Let’s not be rash, Let’s make our list and check it twice. My take is that such a bias is neither inherently superior or inferior. There’s a lot to be said for it. There is also something to be said for expedience and pragmatism.

    Folk wisdom has two contradicting aphorisms for this. Most folks think both have wisdom, even though they can’t both be true at the same time:

    • Fools rush in where angels fear to tread.
    • He who hesitates is lost.

    That leaves us with a conundrum. If we want maximum wisdom, we can’t simply use an ideological principle to guide every action. We have to weigh the case-specific risks of action against the risks of nonaction. That’s what i think SCOTUS tries to do.

    To be quite sure, missteps are not simply a risk. They’re a certainty, over time.

    Fortunately, our government does seem to have various self-corrective mechanisms built in.

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