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.
Clause 12: To raise and support Armies ...;And Section 8 ends with the "necessary and proper" clause:
Clause 13: To provide and maintain a Navy;
Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;
Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.So I think there's no problem with an Air Force. Or eventually Star Fleet.
As for the right to abortion, gay marriage, etc., those are state issues. I don't like them, but it's up to the states. I didn't want this thread to lapse into an argument about those things. I just wanted to discuss what the Federal Constitution says about liberal and strict construction.
In my last post I dealt with the Air Force question. Same argument for Veterans Affairs and the Coast Guard. The State Department just formalizes the President's grant of power over foreign affairs. The FAA is probably justified by the Interstate Commerce clause, but that's a stretch. It could be handled privately, and I'd prefer that.
I think the FBI originally flowed from the power given to Congress under the prohibition amendment (number 18). The amendment said: "Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." It's obsolete now, and with the repeal of prohibition it's probably Unconstitutional; but I suspect it's too late to do much about it.
So you are saying that they are implied powers, since Article 1, Section 8 provides only for an army and a navy?
What you said in the beginning of this thread is that Article I, Section 8 is the limit of congressional powers, and funding a separate branch of the military called "Air Force" is not included. Neither is a Department of Homeland Security, which controls the Coast Guard. Nor is funding a State Department or the rest. What your prior post did was make the case that there are implied powers, powers necessary to govern the country. And your point seems to be that only implied powers you agree with are valid.
Defense is probably the principle purpose for having the Constitution. The "necessary and proper" power seems to easily justify things like an Air Force. If you'd rather have an amendment for such items, well ... that's your opinion. I'm not interested in arguing an issue like that. I'd rather save my efforts for things that are clearly extra-Constitutional, like the Department of Education.
Liberal construction doesn't mean following the "liberal" party line. It's a technical term that describes a way to read and understand a document. All that I meant to say, and what the Ninth Amendment clearly says, is that we have more rights than those specifically listed in the Constitution. That's what the document says. I have no interest in defending the "right" to sodomy, etc.
"Does a "liberal" construction of our rights include the "right" to sodomy, gay marriage, and abortion? Because if that's what you mean by liberal, this conservative wants no part of it."
Sodomy and gay marriage are things that the government is NOT empowered to interfere with(Marriage is no where mentioned in the constitution). Abortion is different because it deals with the right to life, which is a clearly enumerated power. If the Constitution (state or federal) does not give a power to the government, the government does NOT have that power. The government has no proper authority to interfere with any activity that does not infringe on the right to life, liberty, or property of another individual.
Not at the federal level. Laws about murder are state issues. Most laws are state laws. The feds have crept into several areas, but that's not to my liking, or in accordance with the concept of the Constitution.
And since the federal government is NOT empowered to restrict these things, then those powers are reserved to the states, or to the people.
The government has no proper authority to interfere with any activity that does not infringe on the right to life, liberty, or property of another individual.
The Constitution does not say that.
Didn't used to. It does now:
Amendment XIV, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.They have that power. They seem to have none to interefere with other state laws.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Of course the government cannot infringe upon the citizen's rights, but that's not to say that it has NO other proper authority to interfere in activities that do not infringe on the rights of others.
Homosexual sodomy is a form of murder, since it destroys both the soul and the body.
Thanks for this post. I think I disagree somewhat.
It is great to see Americans so aware of, & energized in defense of, private property rights by addressing threats, this terrible precedent (Kelo v. New London), and becoming aware of the downside of activist Judges. I have been concerned with both of these realted issues for about a decade. I even had brief, separate, conversational encounters with two of the "good" Justices (Scalia & Thomas) in the Kelo case about 6 or 7 years ago re: "The Takings Clause" of the 5th Amendment designed to protect private property from arbitrary seizures, but providing for Eminent Domain for certain "public use" (NOT "public purpose") . It was clear they were anxious to see some good cases walk toward them. I doubt if they would have predicted the bizarre outcome in Kelo, though.
For those of us who are deeply concerned with protection of Private Property from improper application of Eminent Domain in contravention of the Original Intent of the Founders in the 5th Amendment's Takings Clause, I am registering a warning or a concern:
I think AG (& potential USSC Nominee) Alberto Gonzales is very weak on Private Property Rights and lacks an understanding of orignainl intent of the 5th Amendment's Takings Clause (Eminent Domain) based both upon some cases when he ws at the texas Supreme Ct. (e.g., FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000))
and, more recently and significantly, upon his NOT having joined in the Kelo case on the side of property owner. My understanding ws that he had sided with the League of Cities against Kelo while WH Counsel.
As some have frequently observed, he certainly believes in a "Living Constitution" and is NOT a strict constructionist or an Originalist, but rather tends toward the Activist side, per National Review Online and others.
He has been sharply critical of Priscilla Owen in some Texas Supreme Ct. decisions when they were both on that Ct. as Justices, and he has been quoted as being sharply criticial fo Janice Rogers Brown, including being quoted by People for the American Way in their ultra-leftist propaganda.
Didn't used to. It does now:
It did used to. The 5th Amendment prohibits the Federal Government from infringing on a person's life, liberty, or property without due process of law.
The 14th Amendment made it clear that the 5th amendment guarantees applied to the state governments in addition to the Federal government,
True. The expression "liberal construction" had confused someone into thinking it means "liberal agenda," so there was a brief digression into laws about sodomy. It was in that context that I made my comment about the 14th Amendment. But you're quite right. The Congress itself was always so limited, but Congress never legislated about matters of strictly local concern.
I suppose they do. However, the Ninth Amendment doesn't refer to sodomy; nor would I claim that it does. All the Ninth says is that the Constitution's enumerated rights isn't an exclusive list. If the sodomites want to try to wedge their lifestyle into that opening, it's not my fault for pointing out the existence of the Ninth Amendment. I'm not interested in discussing -- or even thinking about -- sodomy. That's not why I posted this thread.
Well I've suggested abortion, sodomy, and gay marriage as just some of the "rights" liberals discover "emanating" from the Ninth Amendment. If it's not these "rights" you're talking about, then what are you talking about? Can you give an example of a "right" not mentioned in the Constitution which should be implied by a "liberal construction?"
Heterosexual sodomy is OK though, right?
Anything within a monogamous heterosexual marriage is morally-permissible, so long as it is consensual and not degrading in any way.
So the Supreme Court Justices should simply be arrested when they rule contrary to the Constitution's plain language?
Works for me.
Yes, you have.
If it's not these "rights" you're talking about, then what are you talking about?
I've indicated at least twice already that those "rights" don't interest me at all, and that I have no interest in discussing them. "Liberal construction" doesn't mean Barney Frank's view of things. It means (I'm repeating myself but it seems to be necessary) that the enumerated list in the Constitution shouldn't be construed to be the exclusive list. I found an online legal dictionary that gives this definition:
Liberal construction: A form of construction which allows a judge to consider other factors when deciding the meaning of a phrase or document. For example, faced with an ambiguous article in a statute, a liberal construction would allow a judge to consider the purpose and object of a statute before deciding what the article actually means.
Can you give an example of a "right" not mentioned in the Constitution which should be implied by a "liberal construction?"
There have been Supreme Court decisions, citing the Ninth, that have upheld the right to contraception. And the right to privacy. Possibly also (but I'm not sure of this) the right to work without paying union dues. One commentator has said:
Other rights that have been recognized include, the right to privacy, the right to travel, the right of self-defense, the right to pursue one's occupation of choice, the right to marry, and the right to bear children.Source: The Forgotten Ninth Amendment.
Then one might ask why 'necessary and proper' doesn't include legislation for Social Security, Medicaid, farm subsidies, etc. because the Constitution also is there to 'promote the general welfare?' The long and short of it either there are implied powers or there are not. If there are not, the the Air Force and God knows how many other government functions and agencies are unconstitutional, and the Constitution itself would need to be amended 15 times a year. If there are, then implied powers doesn't end where you say they end.
That's a common misunderstanding. Actually, there is no "general welfare" power given to Congress. Article I, Section 8, Clause 1 states:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United State; but all Duties, Imposts and Excises shall be uniform throughout the United States;That whole clause is about taxes. The expression "to pay the Debts and provide for the common Defence and general Welfare of the United States" appears between two other provisions specifically about taxes. It was drafted as a limitation on the taxing power, and it describes the intended purpose of the authorized taxation. Madison discussed this in The Federalist Papers : No. 41.
I hadn't heard of Barnett before, but he seems to have a good understanding of the situation.
Here's a good article by Prof. Barnett.
The Rights Retained by The People
And his latest book:
Restoring the Lost Constitution : The Presumption of Liberty