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Dave is a part-time blogger that writes about whatever suits him at the time.

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40 Responses

  1. Avatar Scott says:

    Nice hit piece on conservatives.Report

  2. Avatar Dave says:

    Why thank you.Report

  3. That’s a good piece, Dave. There was a time when I was one of those bemoaning judicial activism and praising strict constructionism. It took only about a year of law school and actually reading judicial opinions to realize that the two terms have absolutely zero practical meaning beyond “results we like and results we don’t like.”Report

  4. Avatar Scott says:

    Just b/c some folks may use the terms incorrectly doesn’t mean they the ideas they express are invalid.Report

    • Avatar Mark Thompson in reply to Scott says:

      What, then, is the correct use of the terms? The article shows that just about any conceivable definition of the terms renders them meaningless, at least as they are used in political discussion. That’s not to say that conservative-leaning judges are unprincipled or anything like that, just that their principles are not usually a preference for strict construction over activism.Report

      • Avatar Scott in reply to Mark Thompson says:

        To me, the correct usage of the term strict constructionism should be exactly what it means, i.e., when deciding if a law is constitutional, the judge should look to the words used in the Constitution, if it at all possible and render a ruling that is consistent with those words and the ideas they express.

        Clearly the founders had specific ideas they were trying to express and therefore chose certain words to express those ideas. The states ratified the Constitution based on those ideas, words and to a certain extent on the explanations given by the Federalists. There are places were the drafters could have been more clear for those of us in the present but I’m fairly sure they thought they were clear at the time.Report

        • Avatar greginak in reply to Scott says:

          you didn’t read the article did you? you do know the founders themselves started to fight about what was written during the contested election of 1800? and definitions and usage of words changes over time so that it is not always understood how they were using words. and what if they are no clear words to deal with a current issue or those words conflict with other amendments or later usage or understanding or practice. or what if we disagree on how to understand what the founders wrote?

          there is a tendency among conservatives to not just assume they are correct, which is understandable, but to assume they have the only possible correct understanding of the Constitution.Report

  5. Avatar Scott says:

    Just b/c some folks may use the terms incorrectly doesn’t mean that the ideas they express are invalid.Report

  6. Avatar Jaybird says:

    If a decision presumes Rights on the part of the Citizenry, it is Strict Construction.
    If a decision presumes jurisdiction on the part of the government to infringe the Rights of the Citizenry, then it is judicial activism.

    (See: Wickard, Raich, Kelo, Buck for examples of activism. See Lawrence, Griswold, Miranda for examples of Strict Construction.)Report

    • Avatar Mark Thompson in reply to Jaybird says:

      Alas, you will not find a single self-described conservative this side of Andrew Sullivan who would agree with that statement (and I’m not even sure he’d agree with you on Wickard). But you knew that already.Report

    • Avatar Scott in reply to Jaybird says:

      Miranda as an example of strict construction? I’ve read my copy of the constitution many times and try as I might, I still can’t find the part where it says that there is a burden on the gov’t to inform you of your rights. Or take Gideon, where the court magically discovered the right to an attorney paid for by the gov’t in the 6th amendment. The S.Ct. can discover new rights all the time but can’t seem to under stand the words, shall not be infringed.Report

      • Avatar Jaybird in reply to Scott says:

        It’s there in the 9th.

        Read it a little bit closer.

        Feel free to call it an inkblot.

        In a couple days, feel free to express surprise and contempt when “liberals don’t respect the Constitution!”Report

        • Avatar Scott in reply to Jaybird says:

          I agree with Frederic Jesup Stimson, that the framers of the Constitution and the Ninth Amendment intended that no rights that they already held would be lost through omission, not that it would be used to magically create other rights. So you are saying that from the time of the drafting of the constitution until the Miranda or Gideon decision that the S.Ct. had been mis-reading and mis-applying the constitution? I find humorous to think that the true meaning of the constitution had to wait till the 60’s to be discovered. Gee, I guess I really should have paid more attention in law school.Report

          • Avatar Cascadian in reply to Scott says:

            That’s a fairly liberal view.

            So misreading is a new phenomena? Boy the old guys had it right. When did the misreading start? I’d say Marbury v Madison if not earlier.Report

            • Avatar Dave in reply to Cascadian says:

              Marbury was no misread.

              For an interesting debate on the scope of judicial review, please refer to the Chase/Iredell viewpoints in Calder v Bull. Libertarians tend to side with Chase and conservatives Iredell.Report

            • Avatar Scott in reply to Cascadian says:

              No, mis-reading the constitution is not new. The S.Ct. has a rich history of mis-reading. I am just pointing out the time it took in these two specific cases for the truth to be discovered for purposes of sarcasm.Report

              • Avatar Dave in reply to Scott says:

                Was Lawrence v Texas a misread? Was Griswold a misread?Report

              • Avatar Cascadian in reply to Dave says:

                I reject the validity of the fourteenth amendment which they rely on. I don’t think that qualifies as a misread as much as hoodwink.Report

              • Avatar Scott in reply to Dave says:

                Yes Lawrence was a mistake, as I agree with Thomas that the law which the Court struck down was “uncommonly silly” (a phrase from Justice Potter Stewart’s dissent in Griswold v. Connecticut), and that that he was correct in voting to uphold it as he could find “no general right of privacy” or relevant liberty in the Constitution.

                Same with Griswold, which I find a silly law, however Bill of Rights does not explicitly mention “privacy.” Justice William O. Douglas was guilty of bad jurisprudence when he wrote for the majority that the right was to be found in the “penumbras” and “emanations” of other constitutional protections.

                I also have a problem with the use of the 14th amend in these cases.Report

              • Avatar Jaybird in reply to Scott says:

                “he could find “no general right of privacy” or relevant liberty in the Constitution.”


                Read the Ninth again. If the Ninth means anything at all, it means this:

                “NEVER EVER USE THE ARGUMENT ‘Well, I didn’t see it in the Constitution’ AS JUSTIFICATION FOR SAYING A RIGHT DOES NOT EXIST. YES YOU.”Report

              • Avatar Cascadian in reply to Jaybird says:


              • Avatar Scott in reply to Jaybird says:

                Then what other “rights” can we expect to be found in the 9th? A right to food, water, air, shelter, a cell phone or maybe the internet (already a right in Finland)Report

              • Avatar Jaybird in reply to Jaybird says:

                Throw something past me.

                If you want to argue that you see “a right to arrest you for having sex with a partner who happens to be the same sex” in there, I’d have to say that I don’t see that… while I *DO* see “right to have sex with a partner who happens to be the same sex”.

                You probably don’t see how someone could possibly claim that what they do in the privacy of their own home is none of the government’s business, however. Hey, what you do in the privacy of your own home *IS* the government’s business!!! What if you’re killing little kids!, I see you ask. What if you’ve got a concentration camp? WHAT IF YOU ARE GENETICALLY ENGINEERING HITLER????

                Therefore the government *MUST* be able to arrest you for having sex with another dude.

                To prevent a second holocaust.

                Well, as compelling as any argument that brings up genetic engineering and hitler tends to be, I have to say that…

                No. Two consenting (note that word!) adults in a house together ain’t none of my (or your!!!) business.

                And I have no idea why you might think that it might be your business to the point where you would think that you have the right to arrest two guys for making the beast with one back.

                Where do you get that particular right?Report

              • Avatar Jaybird in reply to Jaybird says:

                A less snarky essay would be this:

                We’ve got a situation where there are two guys in a house.

                Your position is that, OF COURSE, you have the right to throw them in jail.
                My position is that, OF COURSE, they have the right to be in the house.

                I posit the following:
                Your claim that you have the right to arrest them is far, far more extraordinary than my claim that they have the right to be in the house.

                Explain to me how/why I have this wrong, please.Report

              • Avatar Dave in reply to Scott says:

                I also have a problem with the use of the 14th amend in these cases.

                If that is the case, then what does Section 1 refer to? What protections do citizens or persons have against encroachments by state governments, if any?Report

              • Avatar Dave in reply to Dave says:

                One other question – was Gonzales v Carhart correctly decided?Report

              • Avatar Cascadian in reply to Dave says:

                They’re already enumerated aren’t they? Citizens have a responsibility for their own governance. Abrogating civic duty to the wisdom of a court or legislature is lazy and short sighted.

                I certainly don’t think Carhart was correctly decided. Medical issues are not Federal.Report

              • Avatar Scott in reply to Dave says:

                14th amend Sec 1 refers to the former slaves freed during the recent rebellion mentioned in Sec.2, 3 and 4. Citizens had the protection of their state’s constitution for most thing and the federal Constitution for others until the S.Ct. went crazy with the 14th amendment and incorporation. See Barron v. Baltimore. As for Gonzales, based on my very quick read I would say correct.Report

              • Avatar Mark Thompson in reply to Dave says:

                But if the Slaughterhouse Cases had been properly decided, we still wind up with just about all of the 20th Century incorporation jurisprudence, and then some. If the Slaughterhouse Cases were properly decided, and you agree above that they were not, then state governments wouldn’t be able to do anything at all for intrastate purposes that would be unconstitutional if the feds did it for interstate purposes (beyond certain obvious exceptions).Report

              • Avatar Mark Thompson in reply to Scott says:

                Let us say, for the sake of argument, that in the Chicago gun case the Supreme Court adopts Alan Gura’s argument and overturns the Slaughterhouse Cases. It will have been 136 years in between those decisions, and 144 years since the 14th Amendment was adopted. In Miranda and Gideon, both of which were decided under the 14th Amendment as well, it was only about 100 years in between. Assuming you agree with Gura’s Slaughterhouse argument, how would Miranda and Gideon be a less plausible example of the Court misreading the Constitution for any length of time?

                There are other issues here as well that make the length of time distinction pointless. There is, for instance, the fact that in many cases the Court simply has not had the opportunity to review the issue previously, either because the argument is novel or because the situation giving rise to the argument has not previously been common enough to result in a Supreme Court-level case. Additionally, there is the fact that the Constitution was created with the full knowledge that circumstances would change over time, which at least partially explains why it is so blissfully brief; when new circumstances develop, new applications of those Constitutional rules will likewise develop. And that, of course, is ultimately all that Miranda is – it is not the discovery of a new right, but the discovery of a new application of that right due to developments in the way law enforcement was practiced.Report

              • Avatar Scott in reply to Mark Thompson says:

                The difference is that overturning the Slaughterhouse cases only fixes what the S.Ct. got wrong back then. Whereas Miranda and Gideon created new rights that were never present in the original.

                So the gov’t was misapplying the 6th amend until Miranda fixed it? The idea that the gov’t has to tell you your rights and that you have the right not to speak is a new and novel interpretation of the the original text.Report

              • Avatar Mark Thompson in reply to Scott says:

                This is a misreading of Miranda, at the very least, and also of Gideon (which, it should be noted, merely made 1938’s Johnson v. Zerbst applicable to the states). Regarding Miranda, the Court did not find some new right to be read one’s rights. Indeed, the Court explicitly states that ” we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.”

                What the Court instead found was that under the longstanding principle that confessions must be voluntary to be admissible evidence (see, e.g., Bram v. United States (1890)), the burden of proof regarding the voluntariness of such confessions rested with the prosecution – not at all a new finding. It was further established for quite some time that a “voluntary confession” was one made freely and without coercion. Police departments, responding to earlier decisions prohibiting the use of confessions procured by physical force such as Chambers v. Florida (1940), had increasingly begun resorting to trickery and intimidation to get prisoners to waive their Fifth Amendment rights. The Court in Miranda simply got wise to the fact that these had become widespread tactics designed to do an end run around prohibition of coerced confessions by other means. Rather than outright banning the use of confessions obtained via these tactics, Miranda simply creates a schema under which these tactics may be permitted and where it can be presumed that a confession was obtained voluntarily. It simply holds that the confession of a suspect in custody is admissible only if he is aware of his rights and knowingly waives them. How can it be proven that a suspect has knowingly waived his rights? Well, naturally, if the person doing the interrogating has first advised him of those rights.

                But this does not create any kind of a new “right” to be read your rights. Indeed, if one’s rights are not read to him, the only effect is that his confession will be inadmissible (and of course, any “fruit of the poisonous tree”). You can still get convicted if your rights aren’t read to you, and by itself failure to read your rights to you cannot, so far as I’m aware, form an independent basis for any kind of a civil rights suit.

                Rather, all that the Court did in Miranda was refuse to cover its eyes while the police performed an end run around some of the Court’s earlier decisions. That’s not to say that the Court’s decision is unassailable – one can dispute the finding that various tactics are coercive in any meaningful sense, though I might disagree. One can also dispute whether the Court should have established inflexible rules regarding admissibility rather than leaving that up to the states while continuing to invalidate convictions based on coercive measures taken by the police in the interim, though I might disagree given the number of similar cases that the Court had dealt with in the then-recent past. But one cannot say that the Court created or found a previously unrecognized right – all it did was respond to changed circumstances by creating a rule under which the State could be said to have complied with the long-recognized right against compelled testimony against oneself.Report

          • Avatar Jaybird in reply to Scott says:

            “So you are saying that from the time of the drafting of the constitution until the Miranda or Gideon decision that the S.Ct. had been mis-reading and mis-applying the constitution?”

            I’m phrase it thusly: local authorities did not have enumerated reason to respect the rights of the citizens until the Miranda or Gideon decisions. If, for 100 years, something was never an issue, it hardly seems fair to say that it was a case of misapplication.

            There were decades where “the law” was enforced by a local militia. We had a sheriff thing going on in parts of the country (deputies deputized as needed) for a while. Now we have police forces enforcing laws passed by legislatures long dead against people who have no idea what the laws might even be.

            Surely the fathers could never have foreseen such a thing.Report

      • Avatar Mark Thompson in reply to Scott says:

        Moreover, the Constitution does not define words like “due process,” nor do the Federalist Papers provide a definition of that term since it is a Bill of Rights term. Perhaps you can look to see how contemporaneous commentators viewed the term. Perhaps. But you will, I assure you, find no unanimity of opinion about the term’s scope. You will, however, find plenty of documentation that the Bill of Rights was fundamentally an anti-Federalist document.

        Furthermore, the Constitution contains no discussion whatsoever about under what circumstances the Fifth Amendment right against self-incrimination may be deemed to have been waived. Miranda stands for the simple proposition that any waiver of those rights must be knowing and voluntary. It recognizes that a confession extorted without a knowing waiver has been “compelled” by the State for all practical purposes and is thus unconstitutional.

        Miranda most certainly begins its analysis with the text of the Constitution. But in order to decide cases, you need to figure out how that text applies to a given case or situation. If “strict construction” means no more than what you write above, it tells us absolutely nothing about what result to reach in Miranda. The text of the amendment states quite clearly that “No person….shall be compelled in any criminal case to be a witness against himself.” Miranda merely sets forth rules for when an accused’s confession may be deemed to have been “compelled” such that its admission into evidence impermissibly makes the accused a witness against himself.Report

  7. Avatar Cascadian says:

    I was thoroughly unimpressed with the piece. We use words all the time that are imprecise. If the way in which the use of the word is questioned we can be more precise. The fact that an “academic constitutional lawyers” shouldn’t use the term means nothing for the general usage. The fact that we may be better served using textualist rather than strict construction is quibbling.

    Why shouldn’t activism be construed as non-abstention? Because judges have to judge? Come on now. Sometimes it’s better to just send legislation back to get fixed rather than taking it upon oneself to provide the missing wisdom. Canadian courts do a great job of this.

    All in all, this is a fluff piece.Report

    • Cas:

      I think you’re misunderstanding the point of the piece. It’s not that the terms are incapable of precise definition; it’s that the way in which they are used (primarily by conservatives, although I’ve increasingly seen similar misuse of the “activism” charge by liberals) is remarkable only for its inconsistency. One cannot view both Miranda and Kelo, for instance, as activist decisions and have a meaningful definition of activism. Nor can one view both Raich and National League of Cities as examples of “strict construction” and have a meaningful definition of strict construction.Report

      • Avatar Cascadian in reply to Mark Thompson says:

        I got that. To me the slight of hand comes when we don’t differentiate between academic usage and common usage. Let’s look at a term like Federalist (not to mention liberal or conservative). I usually use the term to mean it’s exact opposite… anti-federalist. I don’t think ant-federalist is even used in common speak and would tend to confuse the debate. If I were in the ivory tower where everyone agreed to use more precise terms, I would use the more precise terms . Insisting that we use the same level of discourse inside and outside of academia is blowing smoke. So academic legal minds use more nuanced terms. Great for them. Maybe someday those terms will filter down. The fact that Scalia judgements are often results based regardless of his protestations shouldn’t impugn the good faith of others.Report

      • Avatar Dave in reply to Mark Thompson says:

        Add Gonzales v Carhart as well, a decision which was applauded by the so-called “strict constructionists” but rested on the modern day (read: Progressive) interpretation of the Commerce Clause that a so-called strict constructionist should, at least in theory, reject.Report