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The Myth of Strict Constructionism and Conservative Judicial Restraint

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Headlined to None 7/14/11

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The United States Supreme Court recently ended its 2010-2011 term with another decision that brings into question how legally consistent this conservative philosophy of judicial restraint really is. This decision pitted the state of California against the Entertainment Merchants Association. The court ruled that California could not restrict the sale of violent video games to those younger than 18 years of age on the grounds of freedom of speech. Oddly, they did rule that child pornography could be restricted in a 2008 ruling. I will write more about this later.

The battle regarding how to interpret the United States Constitution has been in high gear for many years.   Most Democrats and liberal minded people are generally believed to have a view that the Constitution should be interpreted in an expansive manner to suit a changing country. Conversely, most Republicans and conservative minded people are believed to have a view that the Constitution should be interpreted strictly the way it was written. My belief is that both sides have a rather elastic view of the Constitution. 

Conservatives do not see their views in this manner. The extent of their elasticity usually depends on the issue involved and how their view of that issue is best served. I will attempt to show with various examples how those who advocate judicial restraint, also known as strict constructionism, are not truly narrow interpreters of the U.S. Constitution .

The first and main area of the United States Constitution that allows for elasticity in constitutional interpretation is the 9th amendment. This amendment was used as the basis for privacy rights . The most famous and controversial of the cases determined under this amendment is Roe v. Wade which allows a woman the choice of taking her embryo to full term or aborting it. This amendment states, and I quote, "The enumeration in the Constitution , of certain rights, shall not be construed to deny or disparage others retained by the people". 

The founding fathers knew that they had only touched on the most basic rights that they felt important at that time. With this amendment, they gave voice to the belief that times and views change. Therefore future Justices could protect other rights not listed in the original Bill of Rights if they judged it necessary. The 9th amendment inbedded elasticity into the Constitution. It is true that passing constitutional amendments are an important way to also accomplish this. The creators of the Constitution recognized that this would be a long and tedious process. They wrote this amendment to remedy essential and immediate injustices. I believe this was wise and it is an important basis for the counter argument to strict constructionism.

Next I would like to examine the classic debate over states rights and federal powers. Strict constructionists rightfully refer to the 10th amendment in this matter. This amendment reads as follows, "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people". Southern conservatives have argued all the way back to the slavery era that state laws are supreme on both the question of slavery and on how to treat Black Americans subsequent to Reconstruction. They even resorted to seceding from the Union sparking the Civil War on this basis. 

Later the creation and defense of the Jim Crow laws were justified by way of the states rights argument. These laws segregated Black Americans from White Americans. The 1896 Plessy v. Ferguson ruling upheld the constitutionality of segregated accommodations as long as they were separate but equal. The Supreme Court struck the first blow against these Jim Crow laws with the famous 1954 Brown v. the Board of Education of Topeka, Kansas decision. This ruling found that historically, schools that were segregated were and had never been equal anywhere in the United States. Therefore they ruled that segregated schools were unconstitutional. 

The states rights argument has been used on many other issues such as gay rights, abortion, and others. Yet they go against this doctrine when it is convenient to their cause. 

The most prominent example is Bush v. Gore. Article 2, Section 1 of the Constitution gives the states the power to decide how to run their elections for United States Presidential electors. The Florida Supreme Court ordered a re-count of Florida's 2000 presidential vote due to discrepancies with their ballots in this election. The United States Supreme Court overruled them strictly along ideological and party lines. So much for the sanctity of states rights. 

During the Teri Schiavo feeding tube removal case, the Republican Congress passed legislation to move this case to the federal courts. This was after the Florida Supreme Court refused to rule for Teri's parents over her husband. The Florida courts upheld the husband's right to pull Teri's feeding tube due to her vegetative state. Her parents were against this. The U.S. Court of Appeals and the U.S. Supreme Court refused to hear the case on the grounds that it was a state matter. Just another example of intellectual inconsistency on the part of the strict constructionists. This time it was by way of our conservative Republican Congress.

A final area exposing chinks in the strict constructionist armor is in how they deal with the essential freedoms in the Bill of Rights amendments 1 through 6. Let's first examine their 2nd Amendment argument on the right to bear arms. Conservatives fight tooth and nail at any restrictions placed upon gun ownership and usage that legislatures might place upon them. These include banning assault rifles, requiring background checks, and any common sense precautionary restrictions. Yet they are not so strict when it comes to defending other Bill of Rights amendments. 

Separation of church and state is a hallmark of our Constitution. But conservatives often espouse policies such as school prayer and teaching religion in the public schools as a counterargument to the Theory of Evolution and the Big Bang Theory which are scientific theories. 

The conservatives also have no problem showing their elasticity with freedom of speech. Banning flag burning has been a major project for them. The Supreme Court ruled that flag burning was allowed because it was a form of speech and therefore protected no matter how heinous this act appeared to be. This still did not stop conservatives. They continued to push this issue with a proposal for a constitutional amendment banning flag burning. This action went absolutely nowhere except to extend the matter as a political issue. 

The Supreme Court decision at the end of this past term reinforced the ambiguity that liberals and conservatives have towards strict constructionism in the area of freedom of speech. They struck down the California law barring the sale of violent video games to children under 18 years of age. In 2008 they upheld the Protect Act which prohibits anyone from selling or distributing child pornography. Justice Antonin Scalia joined the more liberal justices in upholding this statute. I agree with this decision but why is child pornography more dangerous than violent video games. This dichotomy shows that freedom of speech is not strictly observed nor should it be.   

Finally, strict constructionists have showed no trouble bending Amendments 5 and 6 with regard to the Guantanamo Bay detainees and other terror suspects. These amendments state that no one should be held and denied their liberty without a speedy trial except in times of war or public danger. The public danger argument could certainly be argued for directly after the 9/11 terror attacks when uncertainty reigned supreme. But indefinite detainments without trial after extensive time has passed is totally unreasonable. There is always danger. This exception was meant for immediate danger. The Patriot Act is another example where conservatives have stretched the elasticity of the United States Constitution in response to 9/11. Unfortunately it has also lessened many of the privacy rights of U.S. citizens because of warrantless searches and wiretaps.

The days before the United States Senate voted on Elena Kagan 's confirmation to the U.S. Supreme Court last summer consisted of much pontificating over how the Constitution should be interpreted. Very few conservative Republican votes were cast to confirm her. Most of the explanations for the nay votes were on strict constructionist grounds. This is an unfortunate and growing trend. Justices Antonin Scalia and Ruth Bader Ginsburg were overwhelmingly confirmed in past decades and they were very conservative and very liberal respectively. This illustrates my point that this process has become absurdly political and ideological. 

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I am a 54 year old financial services professional. I graduated from Wagner College in 1980 with a Bachelor of Science in Economics and Business Administration with a minor in Sociology. My interests beyond economics lie in politics, literature, (more...)
 
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It drives me crazy when Far Right Republicans and ... by Howard Schneider on Thursday, Jul 14, 2011 at 9:57:15 AM
Wasn't their only 13 colonies? Let the Tea Party h... by Debbie S on Thursday, Jul 14, 2011 at 12:59:48 PM
Very well said Debbie. One of their heroes, Thomas... by Howard Schneider on Thursday, Jul 14, 2011 at 2:58:47 PM
Conservative judicial restraint is clearly a myth.... by Jillian Barclay on Thursday, Jul 14, 2011 at 10:45:02 AM
Thank you Jillian. These conservatives have a poli... by Howard Schneider on Thursday, Jul 14, 2011 at 11:08:27 AM
article on a vital topic.  As someone who lov... by Bill Hare on Thursday, Jul 14, 2011 at 5:52:12 PM
Thank you Bill. You are quite right about the Supr... by Howard Schneider on Thursday, Jul 14, 2011 at 6:13:23 PM
I've never heard of constructionism before now How... by David McBain on Friday, Jul 15, 2011 at 1:35:59 PM
Hello Amillar. Many conservative people in the U.S... by Howard Schneider on Friday, Jul 15, 2011 at 1:55:37 PM