Column: Shove it, Scalia

By Sam Harding-Forrester

It has been a rough month for Harriet Miers, President Bush’s nominee to replace Justice Sandra Day O’Connor on the Supreme Court of the United States. Opposed by an astonishingly savage Republican lynch mob, Miers has repeatedly avowed her commitment to interpreting the law in accord with what President Bush calls “strict constructionist” principles in the vain hope of deflecting critiques of her credentials as a social conservative. One wonders what happened to those old Republican protestations that court nominees should not be subjected to issue-specific litmus tests.

Miers’ appeal to conservatives, however unsuccessful, does make political sense. Bush has long reassured his conservative base of his commitment to appointing only strict constructionists to fill court vacancies. Strict constructionists do not go as far as originalists, who hold that constitutional law must be interpreted and enforced either in keeping with the original intent its authors had in mind in 1787, or in keeping with the original meaning the law would have had for Constitutional era society. But they do aim at limiting the capacity of judges to employ their own moral judgments in discerning rights and powers suggested implicitly by the law.

Strict constructionists insist that judges should interpret laws and precedents as narrowly as possible, finding nothing in them beyond what is explicitly specified in the text. This is why we had conservative commentators whining loudly about the Supreme Court discerning “a constitutional right to homosexual sodomy” in Lawrence v. Texas (2003), when in fact the justices based their decision on much broader (and vaguer) principles of privacy and liberty.

This strict constructionism is the kind of thing that gets the unquestioning ninnies among us nodding their heads in approval, until one points out what it means in practical terms. Among the Supreme Court decisions that had only an implicit or arguable constitutional basis – often relying on “penumbras” or “emanations” from the constitutional text – are those “activist” decisions of the Warren Court and Burger courts that struck down segregation laws, enforced fair voting practices, protected sexual privacy, established rights for criminal defendants, overturned bans on interracial marriage and promoted gender equality.

It is simply not plausible to hold that these historic decisions were regrettable acts of overreach, which must be respected now only because they are irreversibly established precedents. If justices always aimed to avoid so-called judicial activism by waiting for the elected legislature to introduce laws explicitly protecting the essential rights such decisions established, the results could be seriously troubling. After the Supreme Court overturned bans on interracial marriage in 1967, Gallup polls found that 72 percent of Americans disagreed. In 1991, disapproval remained at 42 percent in the same poll, with disapproval in the South reaching 54 percent. A counter-majoritarian role for the courts, therefore, does not simply imply the undemocratic arrogance of a judicial elite. It has often been vital to the protection of individual and minority rights, as the Warren Court’s momentously just achievements so clearly demonstrated.

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    Many of the “activist” decisions of the past, then, are by now rightly integral to most Americans’ sense of justice. Even leaving aside the case law, a substantial proportion of codified statutes could be taken as inconsistent with the original intent or meaning of the constitution. Only the most unrealistic extremists could seriously take an absolute originalist or strict constructionist stance on judicial decision-making. More often, such positions are trotted out selectively to oppose particular decisions conservatives deem unwelcome.

    None of this, however, should be taken to indicate that judges should run roughshod over existing constitutional law or legal precedent. Such a conclusion would be both politically unpopular and intellectually crippling. An acknowledgement that the constitution is far from being timelessly perfect and complete simply requires that we treat it, and law in general, as an evolving work in progress, with judicial decision making to be the product of a complex balancing of codified law, precedent, national tradition and considered moral judgment.

    As Oliver Wendall Holmes put it in the 1920s, the reality of unforeseeable change mandates that we read constitutional law “in the light of our whole experience, and not merely in that of what was said a hundred years ago.” Or 220 years ago, for that matter.

    Sam Harding-Forrester is a senior in LAS. His column appears every Thursday. He can be reached at [email protected].