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

By       Message Darren Latham     Permalink
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Liberal Stereotype:  Abortion restrictions violate constitutional rights.

Conservative:  Granted there are some unenumerated (extra-textual) rights, but declaring a right to control procreation displays too much discretion by unaccountable judges. 

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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.

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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


[S] trict constructionism [is] a degraded form of textualism that brings the whole philosophy into disrepute. Justice Antonin Scalia

Fantasy that "strict construction" can decide cases ignores reality of constitutional adjudication. To some, "strict construction" signifies that rigid focus on only text shown above to be neither possible nor legitimate. Others mean strict originalism, using only the "original meaning" of that text. But that view also fails, as such meaning rarely is clear and lacks legitimate basis for exclusive use.

Original meaning seldom is certain. Most words have multiple meanings or shades of meaning always in transition; and the founders chose general over specific terms for much of the 1788 text. Some originalists look to historical word-usage--newspapers, speeches, books--seeking "original public meaning." Others imagine a specific intent shared by a thousand representatives voting across state ratifying conventions. Both approaches leave most disputed questions of interpretation unsettled.

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Not only does strict originalism falter on semantic uncertainty, but it violates the rule of law requirement of a present legitimate basis for government power. Allowing a 225-year-old text to define power over 315 million must meet today's legitimacy test, our constitutional standard. The status of such text in our constitution must both (i) reflect the present citizenry's will and (ii) respect inalienable rights. A strict originalist use of that text does neither: part I described why such a reading cannot fully respect inalienable rights; this part explains its conflict with sovereignty. 

  Strict Originalism's Conflict with Our Sovereignty

Strict originalism violates sovereignty's mandate that today's people are the ones whose assent to government matters. Since the Civil War, we have continually assumed assent. In a perpetual state of implied consensus, we act as though a big-enough proportion of us concurs on some core notion of the present scope of federal power and means for change. The fact that our assent is only implicit does raise a complex question of what the people now take to be constitutionally entrenched. And a precise answer ever eludes us since (i) while at least a majority seems necessary, it is debatable how large a supermajority must agree for constitution making; (ii) we dispute the criteria (e.g., age, good conduct, citizenship) for who comprises the group whose constitutional assent matters; (iii) we cannot, day-to-day, draw a complete, direct response to questions of constitutional foundations from a continually regenerating population of over 300 million; and (iv) we disagree over exactly what should be taken to be accepted by implication of past and present events, in the absence of such daily constitutional votes.

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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