Strict constructionism, originalism, textualism and other forms of bullshit…

January 15, 2011

The signing of the US Constitution


“So, Thomas, do you think we need to add that clause to prevent wardrobe malfunctions on the currently-non-existent nationally broadcast television, also known as the Nipp-Slip Addendum?”

“Of course not, Benjamin. People aren’t stupid enough to read every little detail of this thing to the letter. I mean, I can’t even read this letter.”

“Yeah, wtf is that? Is it a Q?”

“No, wait. I think it’s an S with a really long tail attached. Yeah, definitely an S.”

“Right, I see it now. Definitely an S.”

“God, that Adams is such a dickhead with his signature.”

“Yeah, really. What a dick.”

[…End Scene…]

Is the great division between Republicans and Democrats one based on differing interpretations of the Constitution? No, probably not. But examples are quickly at hand to show how they both manipulate the document to pursue their own political agendas, thereby manifesting these ideological rifts. No doubt each side is guilty. But as my own political beliefs lie with the middle-left, I am obliged to take a position. And in this case, I am most happy to do so, screaming out a massive ‘What the fuck?!‘ to my neighbors on the right for their mock-worthy belief in a purely textual reading of the Constitution. Let me try to be more reasonable and explain how I have arrived at this blogging juncture.

Browsing the usual news outlets, I came across a ludicrous story on the Huffington Post, called Scalia: Women Don’t Have Constitutional Protection Against Discrimination. [Did I just give away the milk for free?] A recently published interview from a stupidly-obviously-named magazine, California Lawyer, details Supreme Court Justice Antonin Scalia’s thoughts on the extent of the 14 Amendment’s reach regarding civil rights in the US.  He argues that the Constitution, in its most literal sense, does not prevent discriminatory legislation on the basis of gender or sexual orientation. His statement begins reasonably enough and, upon first reading, is acceptably progressive with one particularly fraught aspect of these Constitutional debates. “[I]f indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society,” he says. There is no disagreement from me on this point; he is right, in my own view. The Constitution is an instrument to guide progression; a tool made of malleable substance; a careful, but not strict, blueprint. Like a parent’s warnings to drive more carefully, phone home very night, or avoid eating junk food: these are pieces of advice intended to be interpreted, whether we may be making a mistake or not. So when he accepts that society may have different viewpoints than the American Ancients, it seems a little too obvious to be a basket on which politicians score cultural points. Right? Right.

Antonin Scalia, Supreme Court (in)Justice

Ah, but I spoke too soon. Immediately after making this (perfectly rational) statement (that I wish other Republicans would believe too), he plays the conservative fiddle, espousing traditional rhythms sweet on far-right ears. The Post quotes him (with my own emphasis), “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.” Oh dear, Mr. Scalia. Well, the fight for appropriate behavior is not lost yet. Add something like ‘that was then, this is now‘ or ‘at least we now accept that these quote-unquote minority groups are intrinsically protected.Don’t just leave it there!

And then he went on: “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. […] Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.” To me, the last line is the death sentence to the American political system and shows Justice Scalia’s deep misunderstanding and underestimation of the structure of the American government. Essentially to claim that the court is not responsible for taking initiative and making plain what is an obvious intention of the malleability of the Constitution is despicable. Making such impractical and downright discriminatory statements, while devaluing his own position and its authority, Justice Scalia does nothing less than to threaten American-style democracy at its core. This is not an hyperbolic statement. He undermines his own political base by making these statements, which suggest the unraveling of every precedent-setting court decision providing a better America. Whether the ruling was for beneficial for one party or the other, we all win with this system.

Critics are right to move forward, such as Marcia Greenberger: “In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them. But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them.” Jack Balkin, a legal scholar, disagrees with Justice Scalia’s interpretation of history and instead finds that there was some protection clauses inherent in the formation of the 14th Amendment:

“First, The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

“Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.

“Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children’s Hospital, decided immediately after the ratification of the Nineteenth Amendment.”

Aka the Supreme Court is good. Undermining it is dangerous. And, according to how our government is set up, is illegal to not have a Supreme Court making these kinds of calls. So really, strict constructionism of this form makes strict constructionism impossible and anarchistic.

The itch this story caused days ago was only made worse when I read a similar one, entitled Mike Lee: Federal Child Labor Laws Are Unconstitutional, also from the Huffington Post. A Utah-based and Tea-Party-backed Senator, Mike Lee, has recently claimed that laws implemented to protect children (and essentially ensure that they are educated to a certain age) are not Constitutionally founded:

“Congress decided it wanted to prohibit [child labor], so it passed a law–no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt. In that case, the Supreme Court acknowledged something very interesting — that, as reprehensible as child labor is, and as much as it ought to be abandoned — that’s something that has to be done by state legislators, not by Members of Congress. […]

“This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh. Not because we like harshness for the sake of harshness, but because we like a clean division of power, so that everybody understands whose job it is to regulate what.

“Now, we got rid of child labor, notwithstanding this case. So the entire world did not implode as a result of that ruling.”

This is simply ludicrous. Child labor was a very contentious issue prior to its eventual regulation/ban. The National Child Labor Committee formed in 1904 and attempted to get legislation through that would abolish child labor altogether. One law did pass via them, but it was inevitably struck down by the Supreme Court on the basis that even a child had a right to contract their own work.  While further attempts were made for Congress to abolish the institution, it was not until the Great Depression that child labor was eventually done away with. This was a direct result of the great competition between children and adults for jobs and the lowering of pay wages for adults as a result. FDR added additional restrictions to forms of child labor after.

Senator Mike Lee

In any case, it is illegal now, so why the hell even bring it up? This is a non-issue and should not even be addressed by our legislators, particularly as dredging it up as a states issue and size of government dispute. In fact, it shows how out-of-touch and backwards these tea-party newbies stances on strict constructionism are. So, we should read the Constitution literally in order to allow individual states to make decisions on whether children can work? The framers of the Constitution purposefully left out that children shouldn’t work in order to secure states’ rights?

ThinkProgress will help me tell why this whole nonsense stinks:

“The Constitution gives Congress the power “[t]o regulate commerce…among the several states,” and to “make all Laws which shall be necessary and proper for carrying into Execution” this power to regulate commerce. Even ultraconservative Justice Antonin Scalia agrees that these powers give Congress broad authority to regulate “economic activity” such as hiring and firing. Which explains why the Supreme Court unanimously overruled Hammer v. Daggenhardt in a 1941 decision called United States v. Darby.”

Both Congress and the Supreme Court have the authority to ensure the best interests of all by overruling state decisions and asserting national policy. So basically, and make sure you read this Mr. Lee since you clearly didn’t before, the US Supreme Court took over this decision because it was vital to America as a whole, a statute that needed to be unanimously defended against individual state arguments. Senator Lee admits child labor is wrong. If the US government had not protected it federally, the institution could still continue. So to address both Justice Scalia and Senator Lee: the Supreme court is necessary, the Constitution is malleable, and people need to let what happens happen.

It is not as though these two believe and preach every single detail in the Bible. It’s adaptable, right, or at least enough to create moral lessons and account for changes in culture and economic ability? If not, I want to know where is that race of giants, the one that survived the Great Flood? And I certainly hope there’s no wool mingling with linen in those Justice robes…according to Leviticus 19:19, it’s a no-no.


One Response to “Strict constructionism, originalism, textualism and other forms of bullshit…”

  1. Roderick said

    Surely you know that “Thomas” Jefferson was not directly involved in making the Constitution? He was in Paris?

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