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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

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And the understood scope of Congress's legislative power today extends from the New Deal era. Since the latter 1930s, the Court has held the commerce power authorizes Congress to address matters "substantially affecting" interstate commerce. That standard allows regulation of even, for instance, working conditions at businesses that operate in one state only. Generations have accepted that precedent as establishing the constitutional scope of federal power in our modern, industrialized nation and integrated economy. That is, we did not feel the need to formally amend the constitutional text, to rigidly commit ourselves to untested language that attempts to more-explicitly reflect our evolved constitutional understanding. The people thus reconfirmed the Court's role in incrementally articulating our constitutional understanding, in a common-law style--preferring that to the uncertainty of creating and adopting new constitutional text through amendment.

On the heels of our founding, Justice John Marshall had underscored the constitutional status of precedent and Court's duty to "adapt" interpretation to the times. In McCulloch, he observed that the 1788 text's general terms showed original intent for broad interpretation: the founders established "a constitution, intended to endure for ages to come, and consequently, to be adapted [by interpretation] to various crises of human affairs." Moreover, precedent regarding the scope of federal power established by long-enduring practices "ought not to be lightly disregarded."

Even conservative justices follow precedent, affirming that the framers' mandate to adapt the 1788 Constitution by interpretation guides us still. The 1788 text itself expanded federal power well beyond the Articles' scope and was accepted by the voting class of the founding generation. But that first consensus does not extend to us cleanly; that electorate was tiny, privileged, white, male, and dead long ago. Rather, we join a chain of acceptance starting with that 1788 consent but linking through subsequent generations, each generation implicitly acceding to at least some of the interpretations expressed in the precedent of their time. What has been accepted over generations thus evolved--extending our full constitution beyond original text.

  The Persisting Rhetorical Mischief of Illegitimate Strict-Construction Claims

Strict construction proves illegitimate for many reasons: no textual scheme anticipates all contingencies; original meaning is vague and cannot limit inalienable rights; the text was originally intended to be interpreted adaptively; each successive generation has accepted clarifying or gap-filling interpretations; and our standard mandates respect for today's popular will.

But strict-constructionist rhetoric still obscures genuine questions. After elaborating the limits of judicial discretion (Part IV), I consider abortion, gay rights, and health care regulation. Legitimate constitutional debate on those issues--and progress on general public understanding, respect for the Court, and integrity in the judicial appointments process--still falters on the enduring influence of strict-constructionist zealots. Exclaiming the 1788 document's exclusivity, ignoring the way our constitutional standard limits that text's present role, they harbor and induce mistaken foundational notions. And those mistakes impair the public's appraisal of today's already-complex, real constitutional questions. That, in turn, undermines rule of law goals of ensuring the democratic basis of government and public understanding of legal authority.

An inane mischief, since the limited judicial discretion required for constitutional government serves monotextualists' own goals better than would their myth-based fantasy of strict construction.

IV. Limited Judicial Interpretation Serves Pragmatic and Conservative Concerns Better than Could Formal Constitutional Amendment Alone  

What is practicable must often controul what is pure theory: and the habits of the governed determine in a great degree what is practicable.

President Thomas Jefferson (in 1802, abandoning earlier strict-constructionist views when confronted with reality of government)

The option of formal constitutional amendment cannot eliminate need for some judicial interpretation and often would contravene conservative principles. At the same time, process and principle constrain the core of judicial discretion our legal system requires.

   The Practical and Inherent Limits of Amendment as Sole Means of Change

Contrary to the claim that meaning is frozen in time and new understanding emerges only from revising the 1788 text, amendment cannot practically accommodate all constitutional development. Many founders thought needs for change could be met by amendment more easily than our history has since proved. The 1788 Constitution has turned out to be one of the world's most change-resistant texts--with only seventeen amendments since the Bill of Rights--for two main reasons. First, our typical process, Congress passing proposals for states to ratify, poses a high practical hurdle. Today, for instance, Senators from a group of states collectively comprising only 7.5 percent of the population can deny the two-thirds Senate vote required for an amendment--a veto threshold twice as undemocratic as at our founding, reflecting increased population disparity between states. (The other, never-used option--a constitutional convention--is even less practical.) Second, we recognize that changing constitutional text introduces consequences hard to anticipate and reverse, a risk seldom warranted given our effective tradition of interpretation.

       Minority rights do not depend on majority protection. 

Most clearly, amendment cannot be sole guardian of unwritten inalienable rights. A national supermajority will not always rise and adopt amendments to constrain an abuse by majorities in particular states. And amendment can never remedy the present abuse of a right by act of Congress, that act expressing a national majority will that precludes existence of a supermajority wishing to protect the right. True, for some originally-unenumerated rights, the necessary national supermajorities eventually did arise and enshrine textual protection. We did abolish slavery. We did extend the right to vote, first to men of all races and eventually to women. But slavery's abomination persisted nearly a century after we claimed our independence to be justified by inalienable rights, finally eradicated only by an amendment born of civil war. And we cannot countenance generations of women being denied a political voice prior to 1920's ratification of the Nineteenth Amendment.

Denying judicial recognition of a right merely because amendment provides theoretical remedy, which supermajorities might someday implement, evokes the misguided thinking of Scott v. Sandford (the Dred Scott case). Dred Scott held that African Americans freed under applicable state law were, according the Court's flawed reading of founders' intent, too biologically and socially deficient to be considered "citizens" under the 1788 Constitution, a view that could not be disturbed absent amendment under that Court's narrow originalist philosophy.

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Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law


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Most constitutional scholars, constitutional law p... by Darren Latham on Thursday, Jun 13, 2013 at 9:23:44 AM
of the U.S. and you'll see that the Constitution i... by Daniel Geery on Thursday, Jun 13, 2013 at 1:06:06 PM
Any legal system which fails to accord rights to t... by Vietnam Vet on Thursday, Jun 13, 2013 at 5:52:07 PM
I agree with much of this post. On the second poin... by Darren Latham on Sunday, Jun 16, 2013 at 11:54:42 PM
It is the spirit, not the text that counts. And ev... by BFalcon on Thursday, Jun 13, 2013 at 6:02:44 PM
I couldn't agree more. This is a well written, tho... by Opacus Black on Thursday, Jun 13, 2013 at 7:39:29 PM