Mike Kueber's Blog

April 28, 2010

What can we do to eliminate legislating from the bench?

Filed under: Issues,Politics — Mike Kueber @ 4:53 am
Tags: , ,

While riding my bike today, I started thinking about strict construction.  It seems that every politician (at least every conservative) favors strict construction and is opposed to judicial activism (i.e., judges “legislating from the bench”), but the problem doesn’t go away.  Judges, especially federal judges, tend to think they are smarter than other people, and they have difficulty showing judicial restraint and deferring to politicians.  Instead of just howling at the moon, I wondered if there was something we could do about it.

Something we haven’t tried is to explicitly prohibit federal judges from interjecting their personal values when interpreting statutes and constitutional provisions.  This could be accomplished through an amendment to the Constitution.  Although constitutional amendments must have the support of two-thirds of the Senate and House and three-fourths of the state legislatures, I believe that there are that many strict constructionists already in office.  This proposal would have been an ideal fit for Idea #1 in the Tea Party’s Contract from America instead of its current Idea #1, which is to require each bill to identify the provision in the Constitution that gives Congress the power to do what the bill does.  (See my earlier blog – The Tea Party and a Contract from America.) 

Before attempting to draft an amendment to the U.S. Constitution, I decided we needed a simple, unambiguous definition of “strict construction.”  That is when this matter started getting complicated.  According to Wikipedia, the term has one meaning for judges and another for politicians.  For judges, it means focusing exclusively on the text and not drawing inferences (“Congress shall make no law” means no law); for politicians, it means conservative legal philosophies that emphasize legal restraint, such as originalism and textualism.  Because of these deviating definitions, the politicians’ patron saint for strict constructionism is Antonin Scalia, yet Scalia disparages strict constructionism while advancing “textualism” and “originalism” in A Matter of Interpretation, 1997: 

  • “Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be…. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”   
  • “Unlike an originalist, a strict constructionist would not acknowledge that ‘he uses a cane’ means ‘he walks with a cane’ because, strictly speaking, this is not what ‘he uses a cane’ means.”

Scalia’s textualism is a theory of statutory interpretation holding that a statute’s ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as (a) the intention of the legislature in passing the law, (b) the problem it was intended to remedy, or (c) substantive questions of the justice and rectitude of the law.

Originalism is a corollary of textualism and is a family of theories, principally the original-intent theory and the original-meaning theory.  Both of these theories share the view that there is an authority, contemporaneous with a constitution’s or statute’s ratification, that should govern its interpretation; their difference relates to what exactly that authority is – (a) the intentions of the authors or the ratifiers or (b) the original meaning of the text.

The primary alternative to originalism is most commonly described as the Living Constitution.  This is the theory of constitutional interpretation that claims the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases. 

Proponents for the Living Constitution can generally be broken into two viewpoints – (1) the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary, and (2) the flexible-intent view contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, living document.

Opponents of the Living Constitution often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.  This brings us full circle to our constitutional amendment to instruct justices that the U.S. Constitution lives through its prescribed amendment process, not through evolving values discerned by the justices.  To accomplish this end, I suggest the following:

Amendment XXVIII

The United States Supreme Court and other federal courts shall interpret all law based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.  Their interpretation shall not be based on non-textual sources.     

1 Comment »

  1. […] these candidates is that Scalia believes in strict construction.  As I previously pointed out in a blog posting, Scalia actually abhors strict construction and believes in something called […]

    Pingback by Antonin Scalia comes under attack « Mike Kueber's Blog — June 28, 2012 @ 2:07 am | Reply


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