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

And even conservative justices embrace unenumerated rights, evident in the 2010 holding that a federal constitutional right of gun owners limited the power of states to regulate guns. Unable to rely on the "right to bear arms" protection of the Second Amendment, which limits only the federal government, McDonald's majority needed to go beyond constitutional text to find specific meaning of general text for the Fourteenth Amendment's very general limits on states.

That is, the Bill of Rights--beginning with "Congress shall make no law"--was originally intended, and has always been read, to impose restrictions only on the federal government, not states (which the Court documented in 1833). With a few exceptions, such as the prohibition of ex post facto laws, the 1788 Constitution generally did not restrict the states in dealing with their inhabitants until the post-Civil-War amendments, the Thirteenth through Fifteenth. The most-comprehensive of those, the Fourteenth Amendment, limits states in terms much less particular than the Second Amendment or most other Bill of Rights provisions. The Fourteenth Amendment expressly prohibits states' only from denying "privileges or immunities," "equal protection," or "life, liberty, or property without due process of law." Thus forced to look outside text for the specifics of what those general concepts mean, the Court's conservatives found in history and tradition a fundamental constitutional right to possess guns, a liberty states could not deny.

Accepting that some inalienable rights must be identified through sources beyond original constitutional text changes the tone of the debate, but not necessarily the outcomes--rational grounds for conservative skepticism remain:

Liberal Stereotype:  Abortion restrictions violate constitutional rights.

Before elaborating the debate on limits of the judicial discretion necessary to interpret out constitution (part IV), I return to and debunk what most impairs discussion of such genuine issues even starting--the two myths, textual infallibility and strict construction.

II. Transcending Textual Infallibility, the Popular Myth of Law in General

Many think that societies can craft clear, complete, and coherent legal texts--statutes, constitutions, et cetera, that anticipate all disputes without vagueness or inconsistency. That fallacy, embraced by French revolutionaries, rejects our founding principles. One aristocracy the French overthrew was judicial, and they hoped to subordinate future judges to being mere automatons under new legal codes. Our revolutionaries, instead, asserted rights of English citizens that independent judges had exercised discretion to elaborate and protect for centuries. The French, having mistaken that a new system could deprive judges of all power to "make law," failed to create such an infallible code--mirroring prior failures of such attempts, including Justinian's Sixth-Century codification of Roman law and Frederick II's 17,000-part Prussian code. Unlike the French, our founders embraced the English model, in which judges have articulated common law for nearly a millennium and for centuries have exercised interpretive discretion to resolve the limitations of legislatively codified law.

Reflective lawyers know uncertainty infects all legal systems. And legal codes falter for many reasons, including the limits of language; complexity of societies and human interactions; difficulty of foreseeing disputes within complex societies; legislators' disagreement on how even foreseen issues should resolve; and lawmakers' failure to understand and translate their intent on issues into effective codes. History disproved the ideal of a system that requires no future judicial elaboration, and the common law avoided the codification fetish of civil law countries (most of the world). So the genius of the American legal tradition springs not only from an innovative constitutional text but also from continuing the common-law method and the independent role of judges applying it.

That inherent need for legal texts to be interpreted displays throughout our 1788 Constitution. The words "due process" alone never prescribe what a hearing requires. "Equal protection" did not decide segregation cases. Nor does "freedom of speech" tell when one may shout "fire." And "regulate Commerce . . . among the several states" does not specify Congress's power with any precision. Generations ago, the Court held that imposing labor standards on local manufacturing that affected the national economy fell within that power. And similar precedent established a scope of commerce power that, if closely followed, would cover the Affordable Care Act.

Hard cases cannot be decided by "applying the Constitution as written." Rather, they trigger the question of proper sources to remedy textual shortcomings--should it be: outside evidence of original "public meaning" of the text or of its ratifiers' intent? precedent? tradition? ideas implied in the text? social facts? Where, not whether, to look beyond text is the issue. Even liberal justices start interpretation with text; but no justice ends there except in trivial cases.

III. The Myth of Strict Construction; the Real Constitutional Status of Precedent

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