The Unyielding Weakness of Strict Constructionism

by Brien Jackson

Larison goes to the well of the weakest of “strict constructionist” tropes:

The amendment process is a somewhat indirectly democratic means to make changes to that system. This makes the amendment process a slow, drawn-out, but nonetheless democratic remedy to perceived flaws in the system. The amendment process is extremely slow and arduous because there was once a quaint idea that dramatic changes in the power and scope of government could and should only be achieved through this process. Likewise, there was an assumption that there needed to be numerous obstacles to amending the fundamental law to make it more difficult for majoritarian tyrannies to strip people of their constitutional protections. Once the Court began discovering rights, or, if we want to be less pejorative, extending the protections of existing rights in new ways, what had once been within the power of state legislatures and electorates to regulate as they saw fit was placed behind a series of huge obstacles that cannot be overcome without the building up of super-majorities throughout the entire country in favor of a certain position. That would all be well enough if the right in question were not so constitutionally dubious and morally outrageous, since this process is supposed to be extremely difficult and it is supposed to require the support of most of the people, but the so-called right we’re talking about is both of these things.

The key point here is the notion of “discovering rights” which, as Larison’s admission that the phrase is a bit pejorative belies, is the idea that such rights are not, in fact, protected by the Constitution. It’s an argument you’ve probably heard any random talk radio host make at some point or another, something along the lines of “show me where the Constitution says anything about a right to privacy.” Of course, excepting the 4th amendments protections against unwarranted search and seizure, the Constitution doesn’t say anything about privacy, or abortion, or owning a pet, or being able to choose which brand of gum you want to purchase. But there is the 9th amendment, which says, and I quote, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, one of the amendments in the Bill of Rights says in no uncertain terms that there are rights held by the people under the Constitution that are not specifically mentioned in the Constitution. But it doesn’t give any idea as to what those might be, which makes it hard to argue anything concretely under the 9th amendment. I can make the argument that there’s a right to anything I want there to be a right to under the 9th amendment, and there’s no way to definitively argue against me. At the same time, there’s no way to prove my affirmative argument either. You can make a fairly reasonable argument that this fact makes such a system inoperable in practice, since the only way to determine these questions is by the whim of the judiciary, or society, at the moment, which is anathema to the general theory of written law, and that a standard f only respecting specifically enumerated rights is more desireable from a social order standpoint, but doing so requires the person making the argument to wholly ignore the plain text of the 9th amendment, which obviously doesn’t really square with the way “strict constructionism” is commonly presented.

The bright-line-rules standard preferred by Scalia and Thomas, outlined most recently yesterday in Caperton, fails in similar ways. Roberts’s dissent, as Paul Campos notes, basically argues that no standards are better than vaguely defined “arbitrary” standards, but again, this pays no attention to the structuring of the Constitution, which at various points resorts to undefined subjective  language. The 8th amendment, for example, simply states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” How should we define “excessive,” “cruel,” or “unusual?” The Constitution doesn’t say. And yet it explicitly bans such sanctions. Again, it might not be as cut-and-dry as the Scalias and Thomases of the world would like things to be, but it is in the Constitution.  

On the latter point, Larison’s logic simply doesn’t follow. If “the right in question is so Constitutionally dubiousand morally outrageous” as Larison accepts abortion rights are as a given, then we should expect that it would be easier to cultivate a super-majority in these cases than in other, less egregious, ones. That it isn’t suggests that reality is not quite what the right imagines it to be.