So, I have little to do at work while waiting on the Database Administrators to adjust some privileges, and I’ve been reading this thread :
And in it, the old theme of strict constructionist judicial interpretation of the Constitution is reprised.
Bricker, in particular, loves to go on about this subject.
Personally, I’m not a “strict” constructionist. I’d almost be, but there’s something I value very highly that is only implied in the Constitution… and that is my right to Privacy. I feel that it is a basic, inalienable right - and many incarnations of the Court have seen fit to read such a right into the Constitution based on the protection from unreasonable search and seizure, et cetera.
So, what about a Privacy Amendment?
Is it a good idea? A bad idea? How might it be worded? What would the consequences be of such an amendment? And realistically, what are the chances of it gettign passed? Why has it not been introduced before?
The fact that the language of amendments (and, in many respects, of the Constitution itself) needs to be broad enough to win popular approval yet specific enough to give meaningful guidance as to how they should be interpreted is the number one reason why strict textualism is impossible in the hard cases…some imputation or contextual analysis is necessary almost no matter what, unless the amendment is the size of the Tax Code.
I think so, yes. I can’t think of any Supreme Court decision based on a loose interpretation of the Constitution that I’d support except on the basis of protecting citizen’s Privacy.
This isn’t to say, of course, that there might not come a future amendment to the Constitution that I disagree with.
Sure. You could put all that and more in there - the basic jist of a privacy amendment, as I see it, would be to protect all activities by individual citizens that do not infringe on the rights of, or cause substantial risk of harm to, other citizens or the national interest.
It’d provide explicit support for Roe v. Wade and Lawrence V. Texas, among other things.
No, there’s not… except that if there’s no basis for the rule you propose above, other than your own love of privacy. For example, I could say I favor the Court’s ignoring the warrant requirement in all suspected terrorism cases because, while I value playing by the set rules, I value safety and security more. That’s the danger of leaving the set rules behind: anyone may legitimately introduce a new “rule” to be followed. There’s nothing about your love of privacy trumping the words of the law that makes it unique. I may love a well-ordeded socoety, or a moral society, and want the Courts to follow THOSE goals instead of the written law.
If you value privacy, then your OP asks a great question: I’d support a privacy amendment, and it wouldn’t have to say anything complicated. We prohibit UNREASONABLE searches and seizures. That sentence fragmant is enough to let the courts get into the business of determining what’s reasonable, or unreasonable, without offending the doctrine of strict construction. We don’t need to lay out a five-page list of what sorts of searches are reasonable. So, too, with the privacy amendment, which could simply say, “The people have a general, reasonable right to privacy.” That would be sufficient hook to hang all sorts of case law on.
But that’s the way it should have been done: the people, through their elected representatives, should add that language to the Constitution… THEN the Courts may interpret it.
But this is the crux of it. Actually, I’d ask Bricker. Bricker, how would you word a privacy amendment so that a) it’s broad enough to be passed and to encompass what is “needed” or “desired,” but b) specific enough so that the courts don’t have to resort for extratextual analysis?
I contend that you can’t, but I’m open to being proven wrong.
Hmm. I’d say that that would be an extremely broad amendment, but doesn’t the idea that activities could be prohibited if they risked harming “the national interest” give the government a massive loophole?
Bricker: I see you answered my question as I was posting.
You don’t think this necessarily gives rise to exactly the sort of jurisprudence that you decry when it comes to other constitutional provisions? What if different justices wildly disagreed (as they would) on the meaning of “the people,” “general,” “reasonable,” and “privacy”?
To follow up: laws are often vague, confusing, or broadly drawn. The textualist position in such instances often is to say, “Look, Congress should have done a better job of expressing themselves and covering the circumstances under which this law would foreseeably be applied. We’re interpreting this as written, and if that’s not the way that Congress meant it, they can pass another law to clarify.” Does anyone advocate this approach as regards constitutional interpretation?
Consider Kyllo v. US. This is a classic example of a case where I disagreed with the result, but had no problem with the process. The court’s job was to interpret “unreasonable search.” To me, infrared that your home is radiating into public space is public, and thus it’s quite reasonable for police to view it. The Court disagreed; they interpret “search” and “unreasonable” differently. That’s their job: those are words in the text that they are called upon to interpret. I’d have liked a different result, but, hey, no call for me yet from Mr. Bush’s office to get nominated anywhere on the federal bench, so I lose.
I don’t require that Congress or the Constitution craft razor-precision, hyper-detailed language. I do object to large inferential leaps to establish basic principles. The basic principles should be creatures of the legislature, enshrined in text. The interpretations of them is properly the courts’ job. The court may not create new basic principles.
Okay. So as a textualist, how do you determine what words like “search,” “unreasonable,” or “equal protection” mean? Is legislative history, for example, utterly out? Are you a public choice guy?
While we’re talking about constitutional amendments, by the way, I’d still love your take to a point I made in the nuclear option thread awhile ago. You said that the courts had a valid countermajoritarian role – that statutes should be interpreted, when necessary, to give greater effect to the protection of political minorities than the text or history might suggest – but that courts shouldn’t act in a counter-supermajoritarian fashion. That is, courts shouldn’t read anything into constitutional amendments, because a) it’s tough enough to pass amendments anyway that one can presume the text wasn’t crafted carelessly, b) it’s much easier for Congress to remedy what it views as judicial misinterpretation of a statute than for the country to re-amend the constitution to clarify things, and c) the will of the supermajority is entitled to deference, even as against political minorities, in a way that the will of the majority or the plurality is not.
My response was twofold. First, I said that political minorities oppressed at the hands of a supermajority are at least as functionally disenfranchised – if not moreso – as those at the hands of a majority. There’s even less chance that a superminority will be able to propound its views in the political arena (whether legislative or constitutional) and hope to effect substantive change by democratic means. Second, and more importantly, I pointed out that if the courts don’t interpret amendments vigorously to provide protection for political minorities, then the political majority in Congress can use that judicial passivity to its own advantage, oppressing minorities in a way that wasn’t intended by the framers of the amendment…especially if the amendment contains words (like “reasonable”) that can be interpreted by reference to a shifting cultural standard. Thus, a future Congress could pass laws that interpret Amendment X in a particular way to negatively affect a political minority, but because Congress is using that amendment as a shield and because the amendment’s language is broad enough to rationally support Congressional interpretation, the court’s legitimate countermajoritarian role gets shut down. I’d love to get your read on that.
My prescription, by the way, based on my above post, would be that courts should presume against any reading of a constitutional amendment that would deprive political minorities of rights relative to political majorities unless such a reading is absolutely one hundred percent explicit.
And even then, there’s technically nothing stopping the American people from passing a constitutional amendment saying, for example, “None of the rights granted by this Constitution or its Amendments apply to left-handed Albanians. Neither Congress nor the States shall make any law granting to left-handed Albanians any rights found in this Constitution or its Amendments.” Under such a law, the court would have to forego its countermajoritarian role, unless it wanted to take the drastic step (actually legitimate in some other countries) of declaring the amendment itself unconstitutional. But that wouldn’t and probably shouldn’t happen, and I guess in that instance you have to trust the supermajority not to so gleefully strip rights from a segment of the population that can’t protect itself in the constitutional process.
I submit there is a fundamental difference between my desire for privacy and a desire for an ordered or moral society. The founding fathers didn’t enshrine it into the legal text, but at one point expressed a desire to create a nation giving citizens the rights to “life, liberty, and the pursuit of happiness”. I’m inclined to think the Privacy issue, then, was just an oversight on their part.
And I’d love to see that happen. That’s the point of this OP. Not a Strict Constructionism vs. Loose Interpretation debate.
You don’t think this necessarily gives rise to exactly the sort of jurisprudence that you decry when it comes to other constitutional provisions? What if different justices wildly disagreed (as they would) on the meaning of “the people,” “general,” “reasonable,” and “privacy”?