Strict Constructionism – Is It Constitutional?

Sunni Muslims believe that the Qur’an must be read literally; Shiites think it is a mystical book that can only be interpreted by a most holy senior prelate. Evangelicals believe in the literal meaning of the Bible; many sects believe it speaks to us in metaphor. And there are so many in our nation who believe with equal passion that the Constitution is a document set in stone when this nation was founded, and that any changes in that document may only be accomplished by the Amendment process; others see contextual fluidity.

There have been 27 Amendments to the Constitution since 1789 (the first ten, passed in 1791, are referred to as the Bill of Rights, the most widely known and discussed), but there have been over 10,000 unsuccessful attempts to introduce further Amendments. The 27^th Amendment was the last, passed in 1992; it limits Congressional pay raises. Our Founding Fathers intentionally made the Constitution exceptionally difficult to change. A proposal to amend can either come by a 2/3 vote by each of the Senate and the House of Representatives (via a direct vote or a vote for a Constitutional Convention) or 2/3 of the state legislatures can vote to require a Constitutional Convention (a structure that has never been invoked by the states). Wikipedia explains the balance of the Constitutional process (set out in Article 5): An amendment may be ratified in three ways:

• The new amendment may be approved by two-thirds of both houses of Congress, then sent to the states for approval.
• Two-thirds of the state legislatures may apply to Congress for a constitutional convention to consider amendments, which are then sent to the states for approval.
• Congress may require ratification by special convention. The convention method has been used only once, to approve the 21st Amendment (repealing prohibition, 1933). < /SPAN>

Regardless of the method of proposing an amendment, final ratification requires approval by three-fourths of the states.

So if the Constitution is so very, very hard to amend, then either we are stuck with the literal words of the amended Constitution, and interpretation must be limited to the precise wording of that document as officially amended, or we must assume that our Founding Fathers were creating a far greater document, one that would of necessity require context – ever-changing – and application to circumstances never envisioned in order to remain relevant. It should be noted that the United States – following in the tradition of the British legal system upon which it is based – has always embraced “judge-made law” (called “common law”), which has been subject to the scrutiny of the appellate process. Indeed, so many facets of our everyday existence have been determined (often followed by complimentary statutes) in this way, ranging from rights of privacy to business method patents to even some of the most basic rights relating to the transfer of property.

The battle royal between this basic “dynamic document” and “strict constructionism” has raged for centuries. Some point to the Constitutional Congressional right to raise a standing army and navy as not embracing the right to establish the Air Force, and indeed, it would have been strange indeed if our Founding Fathers had envisioned aviation at any level. Was a Constitutional Amendment necessary? Is the Air Force unconstitutional?

With the retirement of U.S. Supreme Court Justice, John Paul Stevens, a liberal voice for decades, comes a parting statement – framed as a dissent from the recent gun control decision (McDonald vs. City of Chicago) that brought smile to the National Rifle Association. The Court held that the 2^nd Amendment – the right to bear arms – applied to state and local government as well and reversed a Chicago gun control law. Stevens, often at serious odds with his fellow, albeit very conservative colleague, Antonin Scalia, believed passionately that “liberty” was safeguarded by the 14^th Amendment (which extended many Constitutional proscriptions against the federal government to states as well) as part of an on-going “dynamic concept” that did not require reference to the historical past to be valid.

Stevens’ words were strongly written: "The judge who would outsource the interpretation of 'liberty' to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality… When answering a constitutional question to which the text provides no clear answer, there is always some amount of discretion; our constitutional system has always depended on judges' filling in the document's vast open spaces…”

The July 26^th Washington Post summarizes Scalia’s equally powerful retort (although he did ride with the ruling majority but issued his own concurring opinion): “Scalia responded that history must be the deciding factor in recognizing which rights the Constitution protects, that ‘the traditions of our people (are) paramount.’ Stevens prefers the other approach, Scalia said, because it allows him and other judges to pick and choose among the rights they think the Constitution should protect… Stevens believes it is the duty of judges to ‘update’ the Constitution, Scalia wrote, ‘so that it encompasses new freedoms the Framers were too narrow-minded to imagine.’” Pretty tough words that might not exactly have reflected Mr. Justice Stevens’ sentiments, but an equally powerful statement underlying the very notion of strict constructionism. I wonder if Mr. Justice Scalia would favor disbanding the Air Force? Just a thought.

I’m Peter Dekom, and a society is no better than the legal system upon which it is based.