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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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  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.

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


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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

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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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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