Comments on: Strict constructionism

By: Joel Rosenberg

Joel Rosenberg — Sat, 10 Jun 2006 16:03:14 +0000

Oh: Scalia isn’t a “constructionalist”. He’s an “intentionalist.” His philosophy — which he’s not as consistent about as he could be — is that judges/justices are to divine the intention of the Framers from the relevant documents. Not “what’s a good idea today?”, but “What exactly was the deal way back when? (As modified, of course, by redoing the deal through the amendment process.)”

It’s clear that the Framers, for example, didn’t intend to guarantee the vote to women or blacks, and that wasn’t part of the deal in the Constitution — and the intentionalist view is that the only way that that could be changed, however desirable it might be, is through the amendment process.

By: Joel Rosenberg

Joel Rosenberg — Sat, 10 Jun 2006 15:59:39 +0000

As Wolfwalker suggests, you’re missing the point of Scalia’s argument: that the Framers knew that the Constitution might need changes, and provided a mechanism — the amendment process — for that. In fact, during the debates over the Constitution, it was clear that some folks thought that the lack of a bill of rights was a flaw, and not only intended to but did rush right out and amend the Constitution with ten amendments right away.

This isn’t an unusual position; it’s pretty standard.

By: Alex Bensky

Alex Bensky — Fri, 09 Jun 2006 20:57:31 +0000

You can go too far in reading the constituion literally; my view is that if you do that the National Defense Act of 1947 is unconstitutional because the constituion mentions an army and navy but no air force.

And no one, including Scalia, thinks that the government can’t do anything about the internet because the Founding Fathers couldn’t have imagined one. On the other hand, the “living constitution” approach basically means that the constitution is whatever the current justices think it ought to be.

By: wolfwalker

wolfwalker — Fri, 09 Jun 2006 20:21:07 +0000

“If they thought the Constitution was perfect the way it was, then why did they put in an amendment process?”

Obviously they didn’t think it was perfect. They wanted there to be a clear and unequivocal way to change what it said, to correct the imperfections they knew would be discovered over time. But that by itself doesn’t mean Scalia was wrong. I think what he meant was this: You want to change what the Constitution says? Fine, amend it. But until that’s done, it should be enforced as written. No one — judge, jury, lawyer, legislator, or executive — should be able to just arbitrarily rewrite it without going through the amendment process.

Note that this is not meant to imply I think Scalia is right. I don’t think either extreme position is correct. Personally, I want to see a situation in which judges felt free to bend the written words a little bit — but only a little bit. Major changes to the Constitution or to our system of laws should still go through the amendment process. I think the Founders would agree with me.

By: The Doctor

The Doctor — Fri, 09 Jun 2006 19:33:51 +0000

A strict constructionist would ban cars and computers because the Framers didn’t know anything about them…

The Constitution must be able to be interpreted in the context of modern life. It shouldn’t be easy, but it shouldn’t be impossible either

By: Scott

Scott — Fri, 09 Jun 2006 18:45:46 +0000

Meryl,

The reason our constitution actually works is because it started with very good ideas and is very hard to change. It takes a monumental effort to ammend it and has not been changed in a long long time. If it was easy to change it would be worthless and the Driveby Media fifth column and Academia would have twisted it into a pretzel by now.

By: Doug Purdie

Doug Purdie — Fri, 09 Jun 2006 18:09:34 +0000

Excellent point. Scalia is also not a strict constructionist. The example is his ruling on the SF Lady who grew her own Pot. Scalia voted to uphold the federal law against her based on the Interstate Commerce clause. Of course the US Constitution framers could have meant that interstate means that nothing crosses any state lines, and they could have meant that commerce meant that no money ever changed hands, but I kinda’ doubt it.

Also, many are angry that a court decision could overrule the majority’s wish to ban same sex marraige. But, didn’t the framers intend that the court’s job was to protect the minority from the tyranny of the majority?