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.
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