The Once and Future Sting...

Strict constructionism destroyed this country once, and I'm afraid it could do it again. What, you may ask, is a strict constructionist? If you ask a Republican presidential candidate what one is, he'll simply say "it's one who would vote to overturn Roe v. Wade". McCain has repeatedly echoed Bush's promise to appoint only strict constructionist judges, and Fox news pundits assure their viewers that that means pro-life. The problem is, that's not necessarily true, and there's a lot more to it than that. In it's broadest meaning, the term "strict constructionist" describes a judge who seeks to never make inferences beyond the written word of a statute or the Constitution. As a philosophy, it seeks to ascertain the intent of the framers of the Constitution and to never go beyond that. Most strict constructionists lean heavily in favor of state's rights as opposed to federal rights.

I think a lot of conservatives, Christians in particular, are attracted to that style of interpretation because it works pretty well for studying most books of the Bible. If I'm studying the book of Romans, I'm going to want to know exactly what Paul meant when he said certain things. We pray for the Lord's help in understanding the original intent and trust Him to open our hearts. We have faith that at the end of our search, there is a meaning meant for us. We can interpret Paul using other scripture written by different men, because we trust that the Bible was inspired and guided by the Holy Spirit, and even though many men wrote down the 66 books of the Bible, we believe that they had Lord's guidance as the common thread running throughout their separate writings.

Here's the problem: the Constitution isn't the Bible. Never has been, never will be. It's a fallible document written by fallible men. It too was written by many men, but the founding fathers were not inspired by the Holy Spirit. We can't trust that they all had the same principles in mind, and we can't trust that at the end of our struggles a definite meaning will be there. The founding fathers may have had different things in mind when they voted for the provisions of the Constitution, and for most of them we will never have access to their original intent. And worst of all, they didn't even want us to treat the Constitution that way. Thomas Jefferson, for example, thought that each successive generation of Americans should rewrite the Constitution for themselves. Don't get me wrong, the Constitution was an amazing achievement of the human intellect, but to treat it like the Bible is, to be undiplomatic, dumb. Trying to treat the Constitution like the Bible gives you some really awful results.

Do you recognize the picture at the top of the post? Probably not. It's Chief Justice Taney, appointed by President Jackson, who was in charge of SCOTUS until his death at the end of the Civil War. Still not ringing any bells? He infamously wrote the majority opinion in the Dred Scott case. That decision ruled that no one of African ancestry was a U.S. citizen and therefore no black person had any rights in a federal court. It also ruled that Congress was not authorized by the Constitution to prohibit the extension of slavery into new territories. The case is considered one of the main antecedents of the Civil War.

How did Taney and his cohorts justify this decision? Strict Constructionism. They argued that since the Constitution mentions slaves, the founding fathers clearly intended for slavery to continue perpetually in the USA. He also argued that Congress was not explicitly given the power to outlaw slavery, so they therefore clearly could not constitutionally prevent it from spreading into new territories. They held that making laws about slavery was a state's right.

That kind of rhetoric sound familiar? It should, because "states rights" rhetoric has been used like crazy by McCain and Palin with reference to abortion. If you think abortion is a state's rights issue, the other side of your coin to overturning Roe is prohibiting a federal ban on abortion. You want to ensure that abortion will never be banned across the country unless each and every state decides to do so for itself. If you are pro-life, are you confident that California or New York will ever take those steps? Strict constructionist judges today also seek to undermine a lot of the progress we made with Earl Warren as our Chief Justice, progress like the decision in Brown v. Board of Education. They would take this country backwards and destroy any progress we made, just like they did when they helped incite the Civil War.

Next post in the series: the myth of "judicial activism"