Monday, July 12, 2010

Are you a strict constructionist?

The 1st amendment to the U.S. Constitution reads...
Congress shall make no law... abridging the freedom of speech, or of the press;...
Are any of the following correct interpretations?
a) Congress cannot limit political campaign donations because some money might be used to facilitate speech
b) Congress cannot limit your freedom to express opinions on the internet, even though it is not (in correct English) "speech" or text created by a printing "press."
c) Individual States cannot limit freedom of speech or the press, even though the amendment states that "Congress shall make no law..."
If you answered "no" to all of the above (a double negative, meaning the Congress and the States can limit) then congratulations: you are a strict constructionist and read the Constitution exactly as written without interpretation. Your philosophy of government is exactly in tune with simply "reading the words" of the Constitution. However, if you answered "yes" to any of the above (that Congress or the States cannot limit) then you have interpreted the Constitution in light of present technology, culture and what you consider to be logical implications of the written word - i.e. you believe in activist interpretation of the Constitution.

Don't get me wrong - I don't believe the activist v. constructionist Boolean split is really the only way (or the even the best way) to characterize judging or understand our Constitution. However, this is the paradigm chosen by the conservatives, who typically argue their constructionist ideology is the only valid approach and deride any "interpretation" as activist ideology. So for the present purposes I will accept their Boolean logic and discuss just what it takes to be a true strict constructionist.

Is prohibiting Congress from providing campaign finance regulations a strict construction of the Constitution?

To say that Congress cannot place limits on campaign financing, one must extend the Amendment by arguing that money facilitates speech, so the law prohibiting "abridging" freedom of speech also prohibits abridging conduct that facilitates speech. The Founders were fairly intelligent men, so if they really meant that Congress couldn't limit any conduct with facilitated speech, they could have written:
Congress shall make no law... abridging the freedom of speech, or of the press, or any conduct which facilitates these freedoms;
Of course they didn't do this, so anyone who wants the Supreme Court to override the U.S. Congress' campaign finance law must interpret the Constitution as if it had this extra clause. Curiously, present interpretation of the Constitution is actually in line with the true strict constructionist viewpoint - i.e. Congress may constitutionally limit campaign contributions as money is money and speech is speech. It's interesting that many conservatives want the courts to find for their personal interpretation that money is speech (clearly a valuable interpretation if you have money). This can only be considered judicial activism and a new interpretation of the Constitution. This idea of prohibiting conduct that facilitates speech is clearly broader than what is written, so judicial overturning of campaign finance laws should be anathema to strict constructionists.

Is prohibiting Congress from legislating communication of ideas on the internet a strict construction of the Constitution?

The Constitution doesn't say that all forms of communication cannot be regulated - only "speech" and "the press." So to argue that Congress cannot interfere with communication on the internet requires an extension of the ideas of "speech" and "press" to all forms of communication. That is, you must broadly interpret the ideas of "speech" and "press" as being the only forms of communication in the 18th century, so all our 21st century forms of communication are also covered by the amendment. Presently this interpretation is supported across all political parties - but that doesn't make it a true strict construction or a simple "read the words" version of the Constitution. Without this interpretation, we would need a new amendment to the Constitution to protect electronic communications.

Is prohibiting the States from controlling speech a strict construction of the Constitution?

If you are a strict constructionist, you can't argue that an amendment saying "Congress shall make no law" actually means "the States shall make no law." Indeed, the 2nd Amendment states that "the right of the people... shall not be infringed" rather than "Congress shall make no law" so the founders understood the difference between prohibiting Congress from action and providing a right that cannot be abridged by any level of government. The Founders could have easily written an amendment that applied equally to the states as well as Congress, so the differences between the 1st and 2nd Amendment cannot be simply swept under the rug.

Thus, to get to the idea that States cannot control speech from an Amendment that clearly deals only with Congress, you need to look at the 14th Amendment, which says
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;... 
Unfortunately, there still isn't anything for a strict constructionist to really dig into here without resorting to interpretation. The 14th Amendment might have been written explicitly with a clause something like...
No State shall make or enforce any law which Congress is forbidden to make under the Bill of Rights (Amendments 1 through 10 of the Constitution).
Of course it doesn't say this. So if you want to prohibit the States from abridging freedom of speech or the press, you have to "interpret" the 1st and the 14th Amendments together (which the Courts have done). That is, you have to interpret the 1st Amendment (which strictly limits the actions of Congress) as implying a "privilege" or "immunity" for speech and the press (rather than the "freedom" that is stated) and therefore the 14th Amendment bars the states from abridging these privileges or immunities.  It's not really a big reach to do this, but its clearly not a simple "read the words" interpretation of the Constitution.

Strict construction or hypocrisy?

Do we actually have any strict constructionist judges in the Federal District, Appeals, or Supreme Court?  Or are all judges actually "interpreting" the Constitution, with some hypocritically claiming that it isn't what they are doing? As I see it, claiming to be a "strict constructionist" and then interfering in a state electoral process (see Bush v. Gore, 2000, with writings by Scalia and Rehnquist) is simply an attempt at avoiding comparisons of the relative value of different interpretations. If you can say that "I'm right because I'm a strict constructionist and this is what is written," then you don't have to argue the validity and value of your interpretation. You are free to disdain and disparage the "interpretations" of others, while claiming a special ground for your "reading the words."

Most conservative judges and pundits would consider "yes" answers to all three of my examples to be correct readings of the Constitution, even while calling themselves "strict constructionist" and disdaining the interpretation implied by their "yes" answers.

I'm not saying that there aren't good arguments for conservative interpretations of the Constitution or that liberal arguments are necessarily better. But I am saying that we need to start our discussions with an honest playing field: the conservative readings are actually interpretations. These interpretations have no more inherent validity than liberal interpretations and are not necessarily closer to true strict constructionism. Judges and politicians and people of all beliefs have a right to interpret and argue about what the Constitution means in the context of our society, technology, and reasonable extension of the ideas to new conditions.


Strict constructionism isn't.

Claiming special status for your reading of a holy writ is intellectual laziness


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