Skip to comments.Strict vs. Liberal Construction of the Constitution: A Bogus Issue
Posted on 07/06/2005 11:34:50 AM PDT by PatrickHenry
When the Senate conducts hearings to confirm judicial appointments, there should be no controversy over "strict construction," "liberal construction," "original intent," "living document," etc." Consider the plain wording of the Constitution:
THE UNITED STATES CONSTITUTION: Article. VI.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
To me, it seems very simple. The Constitution, by its terms, and by the oath required of all office holders (including judges) is the "supreme law of the land," and is unquestionably binding on the judiciary. The Constitution contains its own rules of construction, which are also binding on the judiciary:
1. The list of rights enumerated in the Constitution is not to be construed as a complete list.In other words, it's not a matter of personal choice. All judges are bound by oath to use liberal construction with respect to our rights, and strict construction when it comes to the government's powers. Anyone appointed to the judiciary should readily agree with this, or he's unqualified to hold office.
2. The list of powers delegated to the federal government is a complete list.
There is no question about it; you are right. The only problem is what to do about the near total ignoring of Constitutional limits by almost every judge currently sitting on the federal bench and almost every member of the House and Senate.
I hate to post and run, but I gotta go in 5 minutes...
Based on your defiinition, I agree whole-heartedly. However, when I (and many others) speak of Strict Construction, or Original Intent, I'm talking about abiding by the Articles and Sections you've posted.
What I mean is this: Don't read something into it that's not there, and don't ignore something that is plainly included. So - to me, you are most definitely a "Strict Constructionist"...
And yes, I've had this tagline for several days now....
So does that mean that there is a right to abortion to be found in there?
Where is the Air Force on that list of powers? The Department of Veterans Affairs? Department of State? Federal Aviation Administration? Environmental Protection Agency? The Coast Guard? The FBI? And on and on and on.
One might construe it means there is a right to abortion, gay marriage, incest, unfettered drug use, or any number of other individual "personal rights" that 5 justices can agree to liberally construct, if PH's words are to be taken literally and liberally in this case. PH, is that what you are implying? Or would you construct the Tenth Amendment's reservation to the States or to the People to mean that State governments can rightly decide how to legislate on these issues.
For example, both Webster and Calhoun started on one side of the issue and migrated to the other side as the issues of the day shifted.
This book is required reading for FReepers who wish to dive into threads about states' rights and loose-versus-strict construction.
For several of these, the answer would be "provide for the common defense" specificallay enumerated as a power of the federal government.
"One might construe it means there is a right to abortion, gay marriage, incest, unfettered drug use, or any number of other individual "personal rights" that 5 justices can agree to liberally construct, if PH's words are to be taken literally and liberally in this case"
It "means" that such things are left to the states or the people to decide. It's not Federal, in other words.
Bingo! Give that man a ceegar.
Stating the same intent, but not the same words, on another thread.
I agree, but when one applies "liberal constructionism" and then uses the 14th amendment to say the states can't deny these "liberally constructed" individual rights, you get rulings like Roe v Wade, and many other atrocities. All of a sudden, things that were rightly left to the states or the people to decide become constitutional rights (via liberal construction). Once you get 5 justices to construct a "right" out of thin air, the people and the states no longer have any say in deciding the matter.
The Constitution does not address abortion in any manner whatsoever.
Indeed, but unfortunately that's not who most jurists view "liberal constructionism".
I think I was taught that it was the Congress who makes
up the laws (rules) and that the SCOTUS is to give the
laws a thumbs up or down on whether the law was
constitutional or not when challenged. And at most, to
give the Congress advise as to what would be Constitutional
if the law were written differently.
Oh, so blame it on your inferior education that must have occurred prior to the Carter Administration creating the oh so critical Federal Department of Education to correct such deficiencies.
Yes, the question was whether on not abortion is one of the unlisted rights?
If All judges are bound by oath to use liberal construction with respect to our rights,
I believe that SCOTUS only has the authority to not strike down as Unconstitutional a law that made abortion illegal.
Sodomy, nude dancing, flag burning, "Under God", gay rights, hate crimes, etc.
I know the Constitution is silent on certain issues, (like abortion), and therefore the Supreme Court must try to cull from the document whether or not something is legal or illegal. This is precisely why the qualifications for this job should entail more than just a broad knowledge of Constitutional Law. The criterion for the job must also demand none but the most honorable and moral men availabe to ensure the Constitution is upheld and preserved in all its integrity.
Unfortunately, we learn today that truth is not absolute, and that every man and woman can have their own "truth". This false belief is the self-justification and the basis of every lie, and it's the reason why the immoral liberals on the Supreme Court get away with interpreting the Constitution in a way that fits their personal agenda.
By the same token, they have no authority to strike down anything that makes it legal either.
For example we have some people right now who want to distort the meaning of the Constitution by claiming that the word "invasion" means migrant laborers.