Unlike the flagship conservative judicial philosophy of originalism, I think there is a lot of value in ‘strict constructionism.’ I’m pretty sure that most people would agree with me wholeheartedly because ‘strict constructionism’ is one of those universally good concepts along with ‘peace’, ‘love’, and ‘unix.’
Everyone (almost) agrees that peace is a good thing. Conflict arises when one group of people feel that a little bit of war can preserve a lot of peace- others would say that we have to do everything in our power to sustain peace even if it means potential war in the future. Maybe peace domestically means allowing less peace abroad or vice versa. In the same way, ‘strict constructionism’ requires us to strictly construct something, but what, where, when, and how strictly?
The folks over at Sobi bring up an interesting point in their discussion of strict costructionism. Remember the era when the court hadn’t established a ‘right’ to privacy, separate pretended to be equal, and businesses had free reign over the election process? That was strict constructionism.
Strict constructionism, in practice, has a lot of the same problems as originalism. All too often, a ‘strict’ construction of the Constitution goes against a lot of very intuitive logic to produce a result that the vast majority of people would not be comfortable with. Here are some aspects of life under a perfectly strict interpretation of the Constitution:
This is a brief aside that deserves its own book, but I don’t have the space- the ‘right to privacy’ exists regardless of whether or not it is enumerated in the Constitution. I believe that all conservatives would be upset if the government constantly resided in their living rooms without reasonable cause. Conservatives claim, however, that there is no ‘right to privacy,’ yet they employ that right almost every second of the day. The ability to walk down the street without random strip searches, enter an office without having your belongings searched, and even wear clothes all finds its roots in the right to privacy. Its hard to claim that we have right to privacy in ordinary circumstances but the ‘right to privacy’ doesn’t exist in more controversial circumstances. If a random kid walked up to me and started digging through my files, a conservative would reasonably suggest that I have the right to privacy. If we have that right to some degree, it must exist somewhere and we should discuss the degree to which it applies to daily life.
If common sense isn’t your thing, we can take a look at the Constitution. The Fifth Amendment and later the Fourteenth guarantee every citizen protection from being “deprived of life, liberty, or property, without due process of law.” That certainly sounds a lot like the right to be secure in my persons without a legitimate cause. ‘Deprive[d]‘ can be reasonably defined as taking something away from someone. Life, liberty, and property sound a lot like the different types of things that I would like to be kept private: my health and well-being, the things that I do privately, and my belongings (of which my persons is key.) Justice Douglas discusses the idea in Griswold v. Connecticut:
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
Another important question about the origins of the right to privacy is nestled in the idea of where rights come from. I would argue, as would a number of people, that we have complete freedom and we grant some of those freedoms to the government in exchange for protection from certain harms being acted upon us. If this were true, it would be irrelevant whether or not the Constitution positively grants the right to privacy or not, we have the right to privacy and until the Constitution says otherwise, the government cannot abridge that right without having to answer for its behavior.
Anyways, back to strict constructionism. If you don’t know by now, I’m not particularly fond of a lot of judicial philosophies that I consider to be hypocritical. Liberals and conservatives use the same philosophies to justify totally different outcomes and a lot of the conflict arises from political motivations. Ruth Bader Ginsburg, as the first Director of the ACLU’s Women’s Right’s Project, is likely to follow whatever judicial philosophy will grant women more rights and adhere to common feminist beliefs. Antonin Scalia, as an obvious fascist propagator, is likely to adhere to whatever judicial philosophies he wants in order to forward his political views. Oh well, such is life.