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Strict Constructionism

Originally published in the Wake Forest School of Law Hearsay

In our democratic republic, judges are entrusted with great power: the power to review the constitutionality of laws passed by the legislature. In many instances, they are the last line of defense to prevent a tyranny of the majority.

This power however, is not mentioned in the constitution. The document does not expressly provide for judicial review. Courts have reasoned that the power is implied from the very nature of the court system, but it stands to reason that the founders, in their wisdom and their affinity for limited government power, would have intended judicial review to remain a limited power. It further stands to reason that the founders would never have envisioned the courts would use the sweeping powers they exercise today.

Interpretation of the constitution based upon strict construction is far easier, much more reliable, and makes our nation much more secure. When judges usurp power it often leads to disastrous results. For example, in Dred Scott v. Sanford the court far overstepped its bounds to declare that even free blacks were not citizens and declared that congress could not regulate slavery in new territories.
The justices claimed that they were protecting the property rights of slave owners. The right to hold slaves is not mentioned in the constitution. The justices in effect manufactured a right where the constitution did not provide one, and it took a civil war and several amendments to undo the horrible decision made in Dred Scott.
Under a strict interpretation of the constitution the justices would have realized that congress can regulate commerce in federal territory, and at that time slavery was classified as commerce. They would have further held that finding a free man to be a non-citizen based on his skin runs counter to all aspects of the constitution. However, the justices in Dred Scott made their decision and then tried to shoe horn that decision into the law and the constitution, thereby making new laws. That is the very definition of an activist court.

Interpreting the constitution in a way that strictly adheres to what the laws say, not what the judges want the laws to say creates better legislation. It forces legislators to pass clearly worded laws, and thus puts issues back in the hands of the electorate. When a judge creates law people generally feel that it is beyond reproach, but when an elected official votes on a law, people are motivated to re-elect or replace that official.

Broad interpretation of the constitution has also been responsible for dreadful inaction. Allowing unconstitutional laws to stand is often worse than an activist court creating pseudo-rights. In Plessy v. Ferguson the Supreme Court upheld the separate but equal doctrine of segregation, despite the fact that segregation is squarely at odds with the constitution and the 14th amendment. If we are going to have laws, if this constitution is going to truly mean something, it must remain clear and interpreted as written. Judges must remain more dedicated to the constitution than to any cause.

If this had been the case, the court would have found that separate but equal could never have been constitutional. I’ve often heard that this is a nation of laws, not of men. Despite what any judge may personally feel, they should interpret laws and the constitution as is, not as they wish it were. Dred and Plessy were blatant examples of judges broadly interpreting the constitution to fit in with their or societal biases. Under strict interpretation there is no room for personal or societal bias, only the law. Laws should be made by legislatures, and then held accountable by the people. Broad interpretation disconnects the people from the laws that govern them, and that is unjust. Only under strict construction interpretations of the constitution is the maximum amount of liberty achieved.

Posted by · 25 November 2005 10:28 AM