The Fallacy of Constitutionalism

from www.pinkcommie.com

While I'm not pink, a commie, or a liberal, I found it an interesting read

The Fallacy of Strict Constitutionalism

With the death of Chief Justice Rehnquist, there will be lots of talk about how he's moved the court in a conservative direction. The theory that Rehnquist and others of his ilk expound is called "Strict Constitutionalism." It claims to be a reasoned philosophy that should guide judges as they decide cases. But it's not. it's a sham, provably false both factually and philosophically.

Strict Constitutionalism rests on three main ideas:

The Legislative Branch should not be readily overturned
The American people have only those rights enumerated in the Constitution
Follow the Intent of the Founding Fathers
Let's look at each in turn.

The Legislative Branch should not be readily overturned
Strict Constitutionalism says to cede power to the legislature. The people elect the legislature and their will, via the legislature, should be followed. There are two problems with this. First off, the legislature is made up of folks from the majority. Simply following the legislature results in a tyranny of the majority. This tyranny is dealt with by the Constitution, but not primarily via the Bill of Rights. We'll get to that later.

A second problem is that the conservative justices don't follow their own rules. They, and those like them, complain about "activist judges" striking down laws left and right and legislating from the bench. It would be interest to see if that was really true. Actually tracking that for all 17,000 plus courts in the country would be a daunting task. But counting it for the Supreme Court isn't all that hard. In fact, the New York Times did just that.

The Times counted up the number of Congressional laws put before the Supreme Court, then counted how often each justice voted to overturn those laws. Remember, these Congressional laws were passed by the duly elected representatives of the people and, according to Strict Constitutionalists, should rarely be struck down.

What the Times found was interesting. Contrary to what the Republicans have been saying, the more conservative justices tend to be the ones most likely to overturn Congressional laws. The correlation is very high between being a "conservative" justice and being prone to overturning the will of the people via their elected representatives in Congress. The most liberal, and thus "activist," justices are least likely to overturn. And centrist justices, like O'Connor and Souter, are in the center. The only way in which this correlation could be higher would be if Scalia came in second rather than third.

Here are the percentages calculated by the New York Times:

Justice % Overturned (Percentages obtained from the New York Times via Daily Kos.)

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %


Note that Scalia is twice as likely to overturn the will of the people than is Breyer. And Kennedy and Thomas are even more so. The idea that conservative justices are dedicated to respecting the will of the people, as expressed by Congress, is simply a sham. The only laws they care about not overturning are those that limit freedom. And that leads to our next section.

The American people have only those rights enumerated in the Constitution
The second pillar of Strict Constitutionalism is that the Constitution, namely the Bill of Rights, enumerates certain rights and those are all the rights that Americans are guaranteed. If the Constitution doesn't list a right, that right doesn't exist. Basically, this assertion can be summed up as:

The enumeration in the Constitution, of certain rights, should be construed to deny or disparage other rights.
The prime example is the right to privacy. (Actually, to Strict Constitutionalists, it's the "so-called" right to privacy.) It's not listed in the Bill of Rights, thus it doesn't exist.

Again, there are two problems with this assertion. First off, what twisted mind-set do you have to possess to think that people should have as few rights as possible? Anyone who claims that the basic rationale of the Constitution is to limit our freedoms to a small number is just plain insane, or evil.

Second? Well, the Constitution says to not view the Bill of Rights that way. It's why the 9th Amendment exists:

Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That's right. The Constitution itself says that one of the basic assumptions of the Strict Constitutionalists is dead wrong. Wrong, wrong, wrong! When Scalia says you don't have a right because he can't find it in the Constitution, he's wrong. And he knows he's wrong. He's certainly read the Constitution enough times to have run across the 9th Amendment. And the language is very clear and straight-forward. But he doesn't care.

The history of the 9th Amendment is interesting. It seems strange, but many of the founding fathers resisted the idea of a Bill of Rights. Here's basically how the debate went:

Founding Father One: We have this wonderful Constitution that strictly limits what the Federal government can do. Any power not explicitly mentioned as something the Federal government can do is reserved to the States and the people. What could go wrong?

Founding Father Two: Well, you know how governments are. We should, as a precaution, explicitly list some rights that the people have, as an example.

Founding Father One: That's a good idea, except for one thing. If we explicitly list a bunch of rights, some folks might interpret that to mean that those are the only rights that the people enjoy.

Founding Father Two: Oh, c'mon! Who could be that stupid? The Constitution is clearly a document limiting what government can do. No one in their right mind would view an enumerated list of rights as being a limit on the rights enjoyed by the people. That's just crazy talk.

Founding Father One: As you said, you know how governments are. Wait! I have a brilliant idea. We'll add an Amendment that explicitly says that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. I think we're agreed that no one could be stupid enough to now think that the Bill of Rights is an exhaustive list of rights.

Founding Father Two: You're right! No one could be that stupid.

Justices Scalia and Rehnquist: You only have the rights explicitly mentioned in the Bill of Rights.

Now, Scalia and Rehnquist aren't really that stupid. They're that evil.

When talking about the Constitution, it's important to remember what the Constitution is. It's a document that explictly lists what the Federal government is allowed to do. In truth, the Federal government has much more power than the Constitution explicitly allows. Go read any Libertarian web site for more on this. Arguably, this extension of power is needed in order for a country the size of the US to function. But always remember. The Constitution is a limit on the Federal goverment, not on the people. Who says? The 10th Amendment:

Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Whenever faced with a "rights-based" issue, the Strict Constitutionalist justice likes to ask "Does the Constitution explicitly mention this as a right the people have?" The proper question is " Does the Constitution explicitly mention this as a right the government is allowed to take away?"

Follow the Intent of the Founding Fathers
Strict Constitutionalists are big on following the original intent of the founding fathers. Once again, their are two problems with this. First, the founding fathers denied the majority of the population a number of basic civil rights. Women couldn't vote, nor did they exist as a legal entities after marriage. Black were property. The founding fathers weren't evil by the standards of their time. But to think we ought to always blindly follow the intent of misogynistic slave holders is folly, especially regarding civil rights issues.

Second, well, their intent was that the Bill of Rights shouldn't be construed as a limit on the freedoms we enjoy. Here's what James Madison had to say:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
That "last clause" mentioned is the 9th Amendment. It's left out of the quote, but I'm sure the next thing Madison said was:

And anyone who tries to deny rights based on their omission from the Bill of Rights is just plain stupid, or evil.

PinkoCommie.org: The Fallacy of Strict Constitutionalism