You seem to demean strict interpretation and original intent, do you see a better method of restricting the judicial dictatorship?
Steve, here are the potential problems I see with the notions of “strict interpretation” and “original intent”.
For one thing, there are errors in the constitution. What, for example, is the strictly interpreted meaning of statement 1 in section 8 of Article I, which states the “Congress shall have the power to collect taxes, duties, imposts and excises, and provide for….. the general welfare of the United States”. One can argue that it authorizes a whole host of welfare-type programs. And then there is statement 8: “Congress shall have the power….to regulate commerce among the several states.” That statement would seem to authorize antitrust laws and the whole nightmarish collection of federal business regulations.
However, assuming the errors are corrected, I would certainly favor strict interpretation – provided we interpret the Constitution to be a limit on government power. But with those errors in place, strict interpretation can work against us as well as for us.
My main objection is to those that argue that "strict interpretation" means the states can pass any law that does not infringe the rights explicitly enumerated in the Constitution and its amendments. A leading spokesman for this position is the judicial darling of the conservatives, Judge Robert Bork.
Bork disagrees vehemently with the 1965 case of Griswold v. Connecticut. This case marked the first mention by SCOTUS of a right to privacy. It involved a challenge to a Connecticut law that made the possession of contraceptives by married couples illegal. Think about that. A law that made it illegal for married couples to own rubbers. SCOTUS said that a right to privacy was implicit in other rights and overturned the law on that basis.
As far as Bork is concerned, such a law is perfectly acceptable. If the state decides that you cannot use contraceptives, then that is the state’s prerogative, because a "strict interpretation" of the constitution does not reveal any right to privacy. (As an aside, I agree that “right to privacy” is not the best articulation of the principle involved. It would have been far better to declare that government’s only legitimate function is defending individual rights and since no violation of rights is involved in using contraceptives, it is none of the government’s damn business.)
So as far as Bork is concerned (and a large collection of conservatives), state laws against contraception, abortion, pornography, gay marriage, teaching evolution, genetics research, etc are fine, because the constitution – strictly interpreted – does not grant anyone the right to these things.
Explaining why he opposes Roe v Wade and the recent decision that threw out the Texas sodomy law, Bork said: “The Constitution has nothing in it that would prevent a state from allowing homosexual sodomy, from allowing abortion or from disallowing homosexual sodomy and disallowing abortion. Those are topics simply not addressed by the Constitution.”
As far as Bork is concerned, since a “strict interpretation” of the constitution says there is no right to be homosexual, the state of Texas can throw you in jail for it; they can give you a cell next to the criminal who was caught teaching evolution..
If we endorse the concept of “strict interpretation”, how do we prevent the Borks & conservatives from using it to limit freedom instead of limiting government?
There are similar dangers with the notion of “original intent”.
Conservatives, for instance, have been talking up a new book by Philip Hamburger called, Separation of Church and State. This book purports to prove that the founders, while objecting to the notion of religion running the government, did not believe in a strict separation of church and state. Thus, according to conservatives, “original intent” means there is nothing wrong with school prayer, displaying the Ten Commandments in the court room, teaching creationism, etc.
Mr. Hamburger might be right about the founders “original intent”. However, this does not invalidate the notion of strict separation of church and state. So, one obvious problem with “original intent” is that fact that the founders were by no means philosophically perfect.
A similar end-run around the second amendment has been attempted many times. Most recently, an Emory University researcher published a book claiming to prove that gun ownership by private individuals was actually uncommon in the late 1700s. So in all likelihood, the “original intent” of the second amendment, according to this argument, was merely to grant the state’s the right to equip a militia, not to grant an individual right to own firearms.
Fortunately, the study was found to be full of lies and errors and was eventually discredited. Unfortunately, this seemed to be the only grounds anyone asserted for dismissing the book. No one stood up and asserted the right to own a gun regardless of what the founders “originally intended”.
“Original intent”, then, commits us to the views of the founders, whatever they are determined to be. While many of their views are quite rational, others are not, and I do not know enough about them to know whether we would be better off under an “original intent” doctrine. As with “strict interpretation”, how do we keep our enemies from using “original intent” against us?