American laws

Implications of a strict constructionist
interpretation of constitutions & laws

Implications of strict constructionist:

Strict constructionism involves the interpretation of a law or constitution that closely follows the original intent of its authors. It is sometimes used as an umbrella term to refer to:

	Originalism: The belief that the U.S. Constitution should be interpreted in the way in which the authors originally intended it.
	Textualism: the theory that the Constitution's or law's ordinary meaning should govern its interpretation, rather than study of the intent of the legislature or the problem that it was intended to solve.
	Literalism: The belief that a constitution or law should be interpreted according to its literal meaning according to the meanings of its words at the time the document was created.

More information.

Concerns about this approach:

The Free Lance-Star newspaper in Fredericksburg, VA, comments that one of the problems of interpreting the Constitution according to the strict constructionist approach as an enduring document is

"...discerning the original intention of historical documents, especially one agreed to by a large body of politicians long dead...After all, not everyone who first read the Constitution or had a hand in its writing had exactly the same thing in mind. Diversity of opinion is not a 21st-century invention. Disagreement and compromise were alive and well in the 18th century." ₅

The U.S. Constitution does not discuss some specific concepts of

	Personal privacy -- whether there are limits on government intrusion in people's lives,
	Sexual orientation,
	Separation of church and state,
	Abortion access,
	etc.

Thus strict constructionists consider the constitution to be neutral on these and similar topics. If a majority of Supreme Court justices followed this philosophy, the court might declare numerous state and federal laws to be constitutional which:

	Seriously intrude in its citizens' private lives,
	Re-criminalize same-sex behavior,
	Require students to recite Christian prayers in the public schools,
	Criminalize all abortions,
	Allow governments to criminalize what the majority -- or a well organized and vocal minority -- feels is immoral.
	etc.

American culture would take a major shift to the right.

The concept of strict constructionism is not necessarily applied consistently. For example, the second amendment to the U.S. Constitution says that: "... the right of the people to keep and bear arms, shall not be infringed." If the word "arms" were interpreted according to the standards of 1791 when the Bill of Rights was adopted, it would refer to "the flint lock musket ... the basic military weapon of the 18th century," and similar manually loaded weapons. ₁₁ The Bill of Rights would not guarantee the right of adults to own or carry semi-automatic or automatic Uzis, AK-47s, 9 mm handguns or similar cartridge loaded weapons.

If a law restricting such weapons was reviewed by the Supreme Court, most or all of the strict constructionist judges would probably interpret the constitution as a living document that protects the right of citizens to own modern weapons.

Balance in the U.S. Supreme Court:

As of 2009-JUL, four justices of the Supreme Court, all of whom were appointed by Republican presidents, appeared to interpret the Constitution in this way. They have tended to vote as a conservative block on ethical and moral matters. They include Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.

After, Justice O'Connor announced her resignation and Chief Justice Rhenquist died, President Bush was required to nominate two new justices. He selected Justice Samuel Alito and Chief Justice John G. Roberts, both of whom are strict constructionists. Their confirmation by Congress created a significant shift to the right in the delicate liberal/conservative balance of the court.

On 2018-JUN-27, after having spent more that three decades on the Court, Justice Kennedy, 81, decided to resign at the end of July. On the evening of JUL-09, President Trump revealed his selection for the new Justice on the High Court to be Brett Kavanaugh. He has been a judge on the Washington DC Court of Appeals. If his nomination is confirmed by the Senate, another significant shift to the right will occur in the delicate liberal/conservative balance of the U.S. Supreme Court. There is considerable anxiety among liberals that past High Court decision on abortion access, marriage equality for same-sex couples, etc. may be reversed by a future U.S. Supreme Court. More details.

Recent impacts of the strict constructionist view:

The strict constructionist philosophy of interpreting the Constitution has influenced the U.S. Supreme Court's majority or minority rulings in many key cases. For example, among cases involving abortion access:

The 1992 case of Planned Parenthood v. Casey involved a Pennsylvania law that required a woman seeking an abortion to have given informed consent, to have waited for a 24 hour cooling-off period, to have the consent of one parent (if she was a minor), and to have informed her husband (if she were a married adult). Chief Justice Rehnquist joined Justices White, Thomas, and Scalia in a minority dissent in support of the PA law. They wrote, in part:

"Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy. And the historical traditions of the American people - as evidenced by the English common...law and by the American abortion statutes in existence both at the time of the Fourteenth Amendment's adoption and Roe's issuance - do not support the view that the right to terminate one's pregnancy is 'fundamental'....The correct analysis is that set forth by the plurality opinion in Webster, supra: a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest. The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." ₆

The year 2000 case Stenberg v. Carhart struck down the Nebraska partial-birth abortion ban. "Chief Justice Rehnquist and Justices Scalia and Thomas once more urged that the issue of abortion be returned to the states." ₇

Justice Scalia stated in his dissent that "the Court should return this matter to the people -- where the Constitution, by its silence on the subject, left it -- and let them decide, state by state, whether this practice should be allowed." ₈

Justice Thomas, writing the main dissent for himself, Chief Justice Rehnquist, and Justice Scalia, stated:

"Abortion is a unique act, in which a woman's exercise of control over her own body ends, depending on one's view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so. " ₈

Letting the "people of this country" decide should not to be interpreted literally as implying a pro-choice stance giving a woman the right to decide to have an abortion. The justices see no "fundamental right" in the constitution for women to choose to have an abortion. They appear to be stating that the state legislatures should decide when, and under what circumstances, the state should allow a woman and her physician decide whether to have an abortion. Any involvement of the public would be restricted to choosing to vote for a state candidate.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

"Framers' 'intent' can be tricky stuff," The Free Lance-Star, Fredericksburg, VA, 2005-AUG-14, at: http://www.fredericksburg.com/
"18th Century Weapons in the Illinois country," George Rogers Clark National Historical Park, at: http://www.nps.gov/
Jerry Goldman et al., "Planned Parenthood v. Casey, 505 U.S. 833 (1992)." Text, abstract, etc. are online at: http://www.oyez.org/
Paul Benjamin Linton, "How Not To Overturn Roe v. Wade," First Things 127, 2002-NOV, Pages 15 to 16.
Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000) ." Text, abstract, etc. are online at: http://www.oyez.org/
"Scalia Slams Idea of a 'Living Constitution'," Citizen Link, 2006-FEB-15, at: http://www.family.org/cforum/news/a0039543.cfm
"The U.S. Constitution and Bill of Rights: An Interactive Guide to the Articles and Amendments," Ammo.com, 2017, at: https://ammo.com/