Do we want a “living constitution”, meaning a Constitution that evolves beyond what its authors imagined, as directed by nine judges – even to the extent of protecting baby murder?
Or do we want judges who will apply the Constitution by “strict construction”, meaning sticking to the “original intent” of its authors?
This article is a response to the misunderstandings of Steve Chapman of the Chicago Tribune, who wrote yesterday that “strict construction” is a “myth”. His headline: “Kavanaugh and the Myth of Strict Construction”.
His point is that some parts of the Constitution are ambiguous, requiring courts to be creative in applying broad principles to complicated situations, so therefore a court’s “construction” (understanding and application of a law or of the Constitution) can’t be nearly so “strict” as we would like.
Chapman confuses “strict construction” for “idiot-proof, connect-the-dots, so-easy-a-baby-could-do-it construction”. Stumbling over that distinction, Chapman imagines that “strict construction” is impossible because of
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“provisions that are complicated, imprecise or untested. The courts have to assign meaning to passages that even Congress didn’t fully understand. Among them are such crucial terms as ‘freedom of the press,’ ‘unreasonable searches and seizures,’ and ‘equal protection of the laws.’ (That is, “no one is above the law.”)
No one misunderstands broad principles like “freedom of the press”, “unreasonable searches and seizures”, or “no one is above the law”. The misunderstanding is not about the rightness of the general principle, but about how to apply it in certain complicated situations. The intelligence that sometimes requires does not remove it from the duty of “strict construction”.
For example, “freedom of the press” was not understood in 1789 as the right to deliberately lie. Nor did anyone in 1789 think that newspapers never lie. But John Peter Zenger’s 1734 trial was still fresh in many memories. It established the principle that it can’t be against the law to tell the truth. That is the essence of the meaning then of “freedom of the press”. Had Zenger been convicted of libeling the government with lies, he wouldn’t have been acquitted.
Since “criminal intent” is also deeply embedded in American law, meaning it is a defense to say you didn’t intend to do the thing of which you are accused, courts prosecute newspapers only when it can be proved that they deliberately lied. The difficulty juries have of establishing the facts in such complicated cases does not remove from courts the duty of “strict construction” in setting forth the law in such cases.
Chapman thought an equally obscure “crucial term” is “equal protection of the laws”, the phrase of the 14th Amendment which, he notes, has been invoked to give equal rights to women. He assumes women’s rights under the clause would never have been recognized had courts followed “strict construction”, since women’s rights was not the “original intent” of the authors of the 14th Amendment. Yet conservatives like women’s rights, Chapman says, which makes conservatives hypocrites for talking about “strict construction” only when they don’t like rulings.
The 14th Amendment was meant to protect blacks from discrimination. But the Supreme Court has also interpreted it to prohibit discrimination against women — never mind that women weren’t allowed to vote at the time it was ratified.
Even conservative hero Antonin Scalia agreed with the court on that. Neither Brett Kavanaugh nor Neil Gorsuch is about to vote to roll back the decisions that advanced sexual equality over the past four decades. (Clarence Thomas? Maybe.)
But they don’t really mean it. “There is no conceivable originalist case for women’s equality, unless originalism is going to lose all meaning and all capacity to limit courts,” University of Chicago law professor David Strauss, author of “The Living Constitution,” told me.
“There is no…originalist case for women’s equality”? I feel a little weird teaching law to a law professor, but here is an “originalist case for women’s equality” which Chapman and Strauss appear to have overlooked:
Chapman and Strauss appear to confuse “original motivation” for “original intent”.
The “original motivation” of the 14th Amendment was to protect blacks from the loophole1 Southern states found in the 13th Amendment which had outlawed slavery.
But the 14th Amendment states a principle. It’s “original intent” holds up that broad principle. It does not mention blacks because its “original intent” was not to protect only blacks, but all people from any present or future law which authorizes protection or prosecution of certain people, making some people “more equal than others”.
In fact, had the “equal protection clause” of the 14th Amendment limited its protection to only blacks, that limit would have violated its own principle.
Thus the “original motivation” of the “equal protection clause” may have had nothing to do with women, (although women had already begun agitating for the right to vote, so surely the constitutional principle had their support), but the “original intent” of the broad principle of “equal protection of the laws” has everything to do with stopping any legal disadvantage for women.
Chapman provides an example of a law in place in 1868 which was repealed much later with the help of the 14th Amendment’s “equal protection clause”. Chapman writes, “The idea that there was a constitutional right to interracial marriage was crazy radicalism at the time of the 14th Amendment.” (1868, four years after the Civil War.)
This fact is Chapman’s argument that invoking the 14th Amendment to legalize interracial marriage violated “strict construction” because its authors supported those laws, proving that repealing them was hardly their “original intent”. To the contrary, it proves only that such repeal was not their “original motivation”.
Perhaps the day will come when conservatives notice that “equal protection of the laws” is violated by immigration laws deny liberty to millions even when they are as qualified as citizens, and even when they are not guilty of doing anything that violates any law. (See Deportation Brief.)
It was obviously the “original intent” of the 14th Amendment’s framers that their broad principle be broadly applied, wherever injustice prevails, even if is discovered in their own lives.
It is like the condition of every Christian: he holds up a Bible as a summary of the goals he “intends” to reach. The fact that the Bible’s noble principles are above his reach does not disprove that it is his intent to try. Like a target at an archery range, sometimes we hit it dead enter, sometimes way off, but that target is always our goal. We keep practicing, with the hope of getting closer and more consistent.
Even so, our nation keeps trying, and we do get a little closer over time, even though our own principles – goals – continually show us new evils we had not previously addressed, just like Bible reading continually shows readers areas of their lives in need of further improvement.
Chapman also confuses losing a political battle with abandoning one’s moral compass. In other words, he confuses conservative failure to persuade voters to support its principles for abandonment of its principles. He finds it inconsistent, if not hypocritical, that conservatives still oppose legalization of abortion, but we finally accept legalization of sodomy and of contraceptives. He says conservatives
“demand that the decision in Roe v. Wade be overturned because it lacked a constitutional basis — but they don’t make the same demand about the 2003 decision protecting sodomy or the 1965 ruling that said states may not outlaw contraceptives.”
He says that proves conservatives aren’t consistent in their support of “the language of the Constitution”:
The conservative claim to adhere to the language of the Constitution is not nearly so strict or faithful as it purports to be. We know that because conservatives often oppose certain Supreme Court interpretations before they happen and when they are issued, only to go along with them later.
So is Chapman right? Do conservative principles flip around like a weather vane?
Of course not. There remains a strong undercurrent of the prolife movement which reasons uncompromisingly that protectable “life begins” truly at fertilization, and most contraceptives kill after that point, so they are murder too; and there is plenty of opposition left among conservatives to equal rights for sodomites.
We may not see those undercurrents reflected in the speeches of presidential candidates, but that is not because we or our candidates have forgotten those principles. When a candidate assures voters that he will not work to restore those principles to law, that could amount to an abandonment of those principles. But not necessarily. It could be no more than acknowledgment of the political reality that the voting majority simply will not accept it.
Quite a few Christians are contemptuous of such “acknowledgment of political reality” as “compromise”, but even the Bible calls for it. In 1 Samuel 8 the people want to give up their freedom in which they “chose” (Deuteronomy 1:13) the judges that ruled them, in exchange for kings which are never voted upon. God told Samuel to warn them how stupid they were, but then if they insisted, to go ahead and give them the tyranny they demanded. God used the diminishing influence He had with His people to mitigate the harm as much as the people would allow: by choosing the first king Himself, and then by subjecting even the king to a Constitution – laws which even the king was not above. 1 Samuel 10:25.
Politicians who follow that example will not stop articulating righteous principles, or mitigating the harm with whatever laws, amendments, or speeches the voting majority will tolerate, but he will acknowledge political reality and not seek in vain to impose on the majority more than they will tolerate.
But obstinate conservative opposition to abortion particularly annoys Chapman. We gave up campaigning against legalization of contraceptives and sodomy – why won’t we give up on legalization of baby murder?
Yet even the most conservative justices are content to leave these decisions in place. That choice can be justified on the theory that a justice should abide by the court’s past decisions, even if he or she thinks the decision was wrong. But if respect for precedent is obligatory, then the 1973 decision legalizing abortion has to stand. Most conservatives very much want it to fall. And if precedents are sacred, why did the five conservative justices just vote to discard an important 1977 verdict that benefited public employee unions?
Well, conservatives don’t think of any precedent as “sacred”!! The Bible is sacred. The name of God is sacred. Among human documents, the Constitution merits our respect, admiration, and allegiance.
And well reasoned precedents, which clearly uphold the broad principles of the Constitution, which in turn well apply several principles of the Bible,2 merit our praise.
But not stupid precedents which clearly violate the Constitution and defy reality!
Why is abortion different than sodomy and contraceptives? Why has abortion driven more votes more consistently with more passion over 45 years than any other issue, with no sign of slowing down? Why is this difference no indication of hypocrisy about “strict construction”?
The contraceptive battle was not merely lost, but abandoned, half a century ago. The facts did not become clear until relatively recently about when contraceptives kill. And considering the political difficulty of just getting voters to outlaw abortion in the 9th month, it seems fruitless to even talk about stopping the killing in the 9th minute.
The logic of the movement is certainly irrefutable, but it’s like complaining to your drug-dealing, prostitute daughter about getting another tattoo.
It’s more a problem of comprehension than the murder of babies with beating hearts and sucking thumbs. Even though Dr. Seuss assures us “A person is a person, no matter how small”, when a person is too small to even be seen without a microscope, we humans are more challenged to stretch our limited love that far.
The sodomite battle is not as “over” as Chapman insinuates. He mentions only the 2003 ruling, which overturned Texas prosecution of people for sodomy in their own homes. That is an issue way at the bottom of the battle – most states had already decriminalized sodomy half a century ago. The top of the battle now is over requiring states to officially recognize sodomite marriage, and over keeping men out of girls’ bathrooms. Those battles are hardly over.
Sodomites would not win in court if “strict construction” were followed. Sodomites are not “similarly situated” with heterosexuals. Their disease, mortality, and suicide rates are somewhere around twice that of smokers; they are a public health danger which creates a “legitimate government interest” in not encouraging their practices.
But abortion is different. It’s a battle about facts. About reality.
Roe’s premise is that we can’t tell if babies of humans are in fact humans!
Any child can tell! Every American legal authority which has addressed the issue has ruled that protectable life begins at fertilization; not one legal authority has ruled that it begins any later! That consensus includes individual judges, juries, expert witnesses, states, and Congress in 2004.
How much denial must any adult muster to say he can’t tell if a baby of a human is a human?! This is about something greater than rule of law. This is about acceptance of reality. This is like The Emperor’s Clothes, where the naked king parades down main street with everyone too afraid to announce what his eyes report, except one little boy, whose evidence is believed and yet even that doesn’t stop the parade.
This is about our right to state what is true and that no one disputes other than to insist they are as clueless as a Supreme Court judge!
At least with slavery, there was the argument, unproved as it was, that “negroes” lacked the mental capacity to manage their own lives if they were set free. One might have thought this disproved by those who were free, but at least for those who had not seen free blacks, that was a semi-plausible possibility.
But how can any adult actually doubt his ability to tell whether the baby of a human is human?
State supreme courts, in abortion prevention cases, say Roe v. Wade decided the non-person status of babies as a “matter of law”, the fact that they really are humans/persons being irrelevant and therefore not for juries to decide. But Roe’s reasoning is obviously about the facts. For legal detail see Model Simple Resolution.
How would legal abortion fare under “strict construction”?
Even Roe said if we ever find out the babies of humans are humans/persons, then the 14th Amendment will require that abortion be outlawed.
I’m not sure “strict construction” is even relevant to abortion. Obviously if an unborn baby really were no more human than a tumor or a baby dog, any woman should have the right to remove it. Roe’s reasoning rests on alleged ignorance of whether a human baby is any different than if a puppy were growing there. It says when the preachers and doctors can’t agree, and legislatures haven’t specified, how can mere justices know?
But certainly the constitution does not authorize the Supreme Court to deprive states and juries of the power to establish a simple fact that everyone already knows, on the basis that the justices are too dumb to figure out the fact by themselves. That is just so far from any kind of “rule of law” or “presence of intelligence” that I can’t even process how that interacts with “strict construction”.
When it comes to interpreting and applying the Constitution, there are few simple answers. It requires a variety of methods: deducing what the Framers intended, discerning the underlying principles, adapting them to situations that could never have been imagined by the authors, taking account of modern standards of what is acceptable, considering previous Supreme Court rulings, using common sense and more. Even conservative justices have to work this way — and so will Kavanaugh. “Everyone’s a living constitutionalist,” says Strauss. “It’s just a question whether they admit it.”
All those things, indeed, judges must do, without diminishing the duty of judges to “strictly construct” the principles of the Constitution. The fact that the framers of laws can’t imagine some of the situations to which their laws will be applied, does not diminish the duty of judges to estimate how the framers would have wanted their general principles and provisions applied.
Our Constitution fits on four sheets. Moses’ laws number about 600. The whole Bible fits on 1200 pages. They contain general principles.
American laws and case laws fill entire buildings, and change every year.
The fact that applications of general principles take more space to record than the principles, does not authorize judges to depart from the principles. It usually doesn’t take a legal expert to notice when they do.
1 The 13th amendment, enacted two years after the Civil War, outlawed slavery except as punishment for crime. So the Southern states simply passed laws against what everybody does, but which made it a crime only for blacks did them. So the 14th Amendment, enacted two years later, says everyone under the “jurisdiction” of our laws must be given “equal protection” by our laws. Laws are unconstitutional if they don’t apply evenly to everyone.
2For example, Exodus 12:49 articulates the same principle as the 14th Amendment’s “equal protection of the laws”