Tag Archives: constitution

fair, but not neutral

Supreme Court (Library of Congress)The “strict constructionist” trope on the Right is an odd and disingenuous position. Like “Biblical literalism,” it implies a simple unity to a complex body of writing; I can’t say whether it’s bad jurisprudence, but it’s certainly bad history.

The U.S. Constitution, its amendments, and the thousands of laws emanating from Congress are hardly a disinterested, neutral clockwork. It’s a mishmash of contradictory goals, high-minded sentiment, and bald self-interest. The 1787 Constitution was shaped by the conflicting interests of agrarian, mercantile, and working classes (cf. Charles Beard and Forrest McDonald), by ideological conflicts between radicals and conservatives, by the sectional conflicts (not only between North and South, but between East and West, coastal and inland) that shaped American history for its first hundred years. The founders’ “original intent” was in the main to strike uneasy compromises and gain advantage for their own positions; all those white-wigged gentleman look the same in the hazy engravings of history, but they were different as can be from each other.

Given the conflict at the heart of our political and legal system, it is unreasonable to expect a Supreme Court justice to be nothing more than a provider of learned exegesis on clear rules. If the Court’s job were simply to say what the Constitution clearly says, there would be no need for nine justices; indeed, in the digital age, a single computer program could handle the job if the Constitution and laws passed by Congress were really so clear.

A Justice should be expected to be fair–should be able to weigh arguments and evidence without prejudice–but a Justice should hardly be expected to be neutral. The Court’s decisions need to be made in the context of not only what the law states, but also the larger society; trying to apply an imagined 18th century rationalism to modern laws and conditions would not be especially useful. A Justice who doesn’t bring her personal experience to the role is not doing her job.

I have a lot of sympathy for the cautious conservatism expressed by Edmund Burke and Michael Oakeshott. Skepticism of radical change is a healthy sentiment; the unintended consequences of change need to be considered, not only on the court but in Congress. This is reflected in the Court’s reliance on precedence; precedence is not, though, a straitjacket: the law evolves with society, and needs to reflect social changes that happen outside the control of law and politics.

The Republican “strict constructionism” is not a version of skeptical conservatism, though. It is a power strategy, pure and simple, to ensure that particular kinds of laws are reviewed favorably by the Courts. The Right on the Supreme Court can be just as “activist” as the Left, but avoids the Republicans’ criticism. I would much rather have an “active” court that wrestles with the implications of their decisions, than a “passive” rubber stamp on an odd literalist reading of law.

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