Conservative, Strict-Constructionist Judiciary
Many on the American political and social right hold that government’s role should be narrow and restricted. As part of their argument they frequently speak out about the need to eliminate “judicial activism”, that is, the courts expanding civil liberties by their ruling. They heatedly argue for a strict understanding of the Constitution and the Bill of Rights, not within an evolving civil context, but within their original setting. They hold that it is a travesty to read into the Constitution and the Bill of Rights issues not envisioned or addressed by the Founding Fathers.
Until recently I have been somewhat perplexed by the strength of this narrow understanding of the role of the judiciary within the religious right who, like Dr. James Dobson, openly call for the President and Congress to appointment “conservative, strict-constructionist judges.” They want judges who will strike down rulings laws that expand civil liberties, impact personal and corporate property and trade rights that are not in keeping with what the Founding Fathers envisioned. Three issues drive their viewpoint:
1. Abortion
2. Gay rights to marry and adopt children
3. The Broad understanding of the separation of Church and State which has led to the removal of the Lords’ Prayer, and official prayer in general, from schools and the public square.
In all three areas, the courts issued created rulings that permitted abortion, accepted the rights of gays to pursue their goals rather be than imprisoned as sexual perverts, and recognized the rights the validity of non-Christian faiths not be be confronted daily in government settings by government-sanctioned Christian worship and expression.
Many evangelical and fundamentalist Christians would freely nod in agreement that the courts have been prime movers in these areas. Hence, their stand against judicial activism makes sense, at least within a narrow context of just these issues over recent decades.
Their position puts the conservative strict-constitutionalist in a position of affirming that the courts were:
1. Correct in upholding the Dred Scott ruling and that slavery is an acceptable practice.
2. Wrong in upholding and expanding child labor laws.
3. Wrong in upholding minimum wage laws that helped to break the cycle of indentured servitude to their employers.
4. Wrong in rulings such as Brown vs. the Board of Education that integrated public schools.
5. Wrong in numerous civil rights rulings that eliminated segregation
6. Wrong in helping to define and uphold truancy laws.
7. Wrong in issuing rulings that eliminated laws that institutionalized the mentally handicapped.
8. Wrong in issuing rulings that allowed the mentally and physically handicapped to attend the same public schools as their neighbors rather than “special schools.”
9. Wrong in invalidating legal contracts with children that were not signed by the parents.
10. Wrong in granting Miranda Rights (the right to remain silent and be interrogated only with one’s lawyer present).
11. Wrong in allowing those who appear before the court to have a translator when they do not speak English.
12. Wrong in addressing in firm terms lynching and other forms of public vigilantism.
13. Wrong in defining due processes that we all now value as part of our judicial system.
14. Wrong in defining slander and issuing other statements that affect the public safety of others, such as screaming “fire” in a crowded theatre, as not protected free speech.
A host of other issues could be added to above list. While the modern strict-constructionist would distance himself/herself from issues on the list, by the very nature of their static view of justice, they are against each of the civil rights issues in the above list. If one is a strict-constructionist, one cannot pick and choose what rulings are judicial activist rulings were appropriate or not appropriate.
Even though the courts may issues rulings with which I do not agree, I am pleased that our judicial system recognizes that society progresses and evolves and that laws need to be understood afresh within that changing context. Though we hold our Founding Fathers in respect, a dynamic view of the judiciary recognizes that their views and writings are not divine writ. They may have been insightful, but they did not envision our contemporary society with its plethora of issues, nor are their views without flaws that subsequent generations have had to address. They themselves understood this, which is why they build an amendment process into the Constitution. I am pleased with a dynamic posture of the judiciary, for a fixed view of the Constitution and Bill of Rights is not justice. A static posture is blind legalism which, as the decades pass, creates an unjust judicial system that lacks wisdom and fairness.
–the deacon
Very nice work. I recently joked in a post about “activist judges” who decided such things as segregation were unconstitutional, but you’ve provided a nice list of instances which expose the absurdity of the “strict constructionist” position.
As is often the case, the arguments by Christians represent an inability to look beyond the moment, of the ramifications of their “logic” beyond the immediate issue they’re arguing. So hellbent to achieve victory in one battle, they’re oblivious to how their efforts could lose them (and sadly the rest of us in certain instances) everything else. We see it in apologetics, where arguments for free will or the problem of evil undermine each other. We see it in politics where in Colorado, hellbent to prevent abortions, they tried to redefine unfertilized eggs as humans, making many a woman a monthly murderer and fertility clinics into places whose death tolls would overshadow Auschwitz. We see it in education, where the arguments to get their beliefs into science classes also would call for inclusion of the beliefs of Wiccans, Summuns, and the Pastafarians. Arguments to ensure their mangers appear at City Hall also demand inclusion of Festivus poles. So why not extend the nonsense and short-sightedness to the judiciary, with this “strict constructionist” angle to win the immediate battles of abortion, crushing gays and infusing Christianity into government property and government sponsored services?
And that’s exactly what religious conservatives want to do – pick and choose what they want to believe and then back up anything they want with religious teaching.
Someone needs to make a list of this stuff, then the next time the morons run on this specific platform, nail them with it. lol
Philly…I concur that individuals too focused upon their pet issues that are emotionally charged often cause one to overlook the ramifications. The evangelical and fundamentalist churches started to intentionally look at the Supreme Court in the late 1970s. Ahead of Reagan’s election a host of evangelical leaders were talking about how the judges a President appoints far outlast his time in office, and that the Presidents choices of judges will shape the direction of the country for decades.
OG….there is a tendency in the church to take a position and then search for biblical references to back-up one’s position or bias. Such a process causes stories to be twisted and images to take on new life.
Kagehi…we need not only lists but a corporate memory that readily recalls key rulings that in the past were liberal and earthshaking but today are embraced by many of those who are conservatively minded.
I have a bowl of cherries here. Anyone want to pick a few?
“A static posture is blind legalism which, as the decades pass, creates an unjust judicial system that lacks wisdom and fairness.”
Remember, too, that “they” are working from a book that never ever changed ever. “Static” is their “good” (provided that you redefine “unchanging” as “as we currently, now, right here, see an idealized, edited and Bowdlerized past which pretty much only exists in our heads”).
Oddly, this turns them into the legalists that that Jesus fellow didn’t much like. Absolutist ideologies tend to do that, whether God or Stalin are in charge.
You ought to read “Active Liberty” by Justice Breyer. He gives a good, relatively readable account of his own interpretive philosophy and his final chapter lays out some great arguments against originalism (not that you did anything but a great job of it yourself).
Modusoperandi…legalism is an all too common tendency for all groups and societies. Well defined rigid rules/laws helps to simplify and bring order to a complicated society. While providing a simplified order legalism all to readily creates and sustains tyranny.
Lifeguard….thank you for noting Breyer’s book, I will need to pick-up that book.
the deacon “While providing a simplified order legalism all to readily creates and sustains tyranny.”
But at least, say, Stalin had the decency to die (and stay dead, and not talk to Saul…Saulovich), if that makes any sense.