In Bush’s press conference today, there was this exchange:
I would like to know about the difference between what are called “strict constructionists” and “activist” judges. The implication, from Bush and others, is that liberal judges are activist and conservative judges are constructionist. Is this necessarily true?
Also, without getting into a moral debate about Roe v Wade, is it possible to discuss whether there are any legal weakness there? Are there other cases that are vulnerable to be overturned by a more “constructionist” court? I guess in general I’m looking for the implications and possible outcomes when Bush keeps his word on this (which I fully expect).
Strict constructionist is code for “ready to overturn Roe v. Wade.”
The right to abortion the Court found in Roe v. Wade is based upon a supposed “right of privacy.” (The right of privacy was delineated in the earlier case of Griswold v. Connecticut, in which the Court found that a right of privacy prevented a state from outlawing the use of contraceptives. More recently, the right of privacy has been held to prevent a state from outlawing sodomy between consenting adults.)
Now if you’ll study your Constitution (including the Bill of Rights) you’ll see that there’s no right of privacy listed among the protected rights. For a strict constructionist, that would be the end of the inquiry, and there would be no right of privacy.
On the other hand, a so-called “activist judge” would look to the 9th Amendment and find this language:
The so-called activist judge might then conclude that the people retain a “right to privacy.”
The whole point of the 9th Amendment was to overcome the objections of some who objected to the idea of the Bill of Rights on the basis that it would not be possible to list all rights. What if they accidentally left one out? The 9th Amendment was a catchall.
So the very language of the Constitution should make it clear that it was not intended to be strictly construed.
Are there “activist” Conservative judges? Do not be fooled. All judges tend to be “activist” when their political viewpoint requires it. One need look no further than Bush v. Gore to see that this is so.
IANAL, so just want to make sure I’ve understood this correctly. The 9th amendment then leaves open the possiblity to guarantee any right not specifically enumerated in the Bill of Rights? Of course, it’s always possible to further codify rights in new amendements.
That’s a powerful little sentence. Can you point me to a good synopsis of Griswold v Connecticut?
Oh lord, not the 9th Amendment again. I don’t think anyone is going to accuse me of being a strict constructionist (conservative code for “doing things the way we want them done because that’s how we want them to come out”), but the 9th Amendment has nothing to do, legally speaking, with the right to privacy articulated in Griswold, Roe, etc.
The 9th Amendment recognizes that rights may exist (whether in state law, federal statute, or the ether) that are not enumerated in the federal constitution, but it is not the source of any rights. All it does is prevent the government from denying an asserted right based solely on the fact that it is not listed in the constitution. The government may deny the asserted right for any other reason, of course, but not that one.
Allow me to crib a suggested reading list from my estimable strict constructionist colleague, Dewey Cheatum Undhow:
the right to privacy found in griswold was based on “penumbras” and “emanations” of various amendments. your final sentence here is what a true strict constructionist would say when someone wanted him to find a right in the constitution that he couldn’t see. he might also let you know that loose construction doesn’t always go toward the common good. for example, the right of a corporation to dump toxic sludge wherever it pleased might also be found in penumbras and emanations, and the person suing them for the various forms of cancer they’ve accrued might be SOL.
here is the wikipedia synopsis, and here is the decision itself, should you find time to read it through. it is perhaps the most controversial and exciting case on the books right now.
Am I to understand that it is not just Roe v. Wade and the Texas sodomy case that are in the cross-hairs of the Administration and its suddenly triumphal supporters? Now they are after poor old Griswold, too – the case that says that the State of Connecticut can’t put people in jail for advertising condoms for sale?
That would be formalism, textualism. A textualist would have read and given meaning (wherever possible) to all of the words in the post, whereas the formalist expected to see the thesis at the beginning of the post and therefore ignored the bottom third.
Strict constructionism also threatens the separation of church and state, since (strictly speaking) the Establishment Clause says:
Under a strict constructionist view, there’s nothing in there to prevent a Roy Moore from having regularly-scheduled Bible readings and calls to Jesus in open court since he’s not a Congress-critter.
