Strict vs. Liberal Construction of the Constitution: A Bogus Issue

Vanity | 06 July 2005 | PatrickHenry (vanity)

[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.

2. The list of powers delegated to the federal government is 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.

[Tailgunner Joe]

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?"

[jmc813]

Homosexual sodomy is a form of murder, since it destroys both the soul and the body.

Heterosexual sodomy is OK though, right?

[Cultural Jihad]

Anything within a monogamous heterosexual marriage is morally-permissible, so long as it is consensual and not degrading in any way.

[<1/1,000,000th%]

So the Supreme Court Justices should simply be arrested when they rule contrary to the Constitution's plain language?

Works for me.

[PatrickHenry]

Well I've suggested abortion, sodomy, and gay marriage as just some of the "rights" liberals discover "emanating" from the Ninth Amendment.

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.

[Non-Sequitur]

The "necessary and proper" power seems to easily justify things like an Air Force.

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.

[PatrickHenry]

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?'

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.

[musanon]

PatrickHenry wrote:

" -- 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.

2. The list of powers delegated to the federal government is 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

---

I agree, it is just that simple. - With one addition to your numbered list:

1. The list of rights enumerated in the Constitution is not to be construed as a complete list.

2. The list of powers delegated to the federal government is a complete list.

3. The powers prohibited by it to the States is a complete list, a list that includes all Amendments.


As to the term "liberal construction", -- Author R. Barnett has, imo, a more definitive wording:

All judges are bound by oath to use liberal construction ["a presumption of liberty"] with respect to our rights, and strict construction when it comes to the government's powers. [At any level] .
---

[PatrickHenry]

Your item number 3 is a good one. It doesn't quite flow from the Ninth and Tenth Amendments, which I regard as mandatory rules of construction, but I agree with it. Well, actually it can be derived from the Ninth.

I hadn't heard of Barnett before, but he seems to have a good understanding of the situation.

[musanon]

Here's a good article by Prof. Barnett.

The Rights Retained by The People
Address:http://www.randybarnett.com/rightsbypeople.html

And his latest book:

Restoring the Lost Constitution : The Presumption of Liberty
Address:http://www.amazon.com/exec/obidos/tg/detail/-/0691115850/002-9973716-2800850?v=glance

[PatrickHenry]

The Rights Retained by The People is an excellent essay. Thanks for the link.

[CourtneyLeigh]

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?

Exactly. A very good point. But you know there are so many others allowed in that list of powers, that shouldn't even be there period!

[CarolinaGuitarman]

"And since the federal government is NOT empowered to restrict these things, then those powers are reserved to the states, or to the people."

Only if the State Constitutions specifically empower the states to interfere. If the state constitutions don't mention it, they cannot make up a government power out of thin air. Our rights do not need to be enumerated, but a government power DOES have to be specified by either the Federal or a State Constitution.

Even if a Constitution did include a clause that would allow the government to interfere with an activity that did not infringe on somebody else's rights to life, liberty, or property, that would just make that Constitutional clause tyrannical. There is never an excuse to make such a clause.

[CarolinaGuitarman]

"Homosexual sodomy is a form of murder, since it destroys both the soul and the body."


Change that to *Drinking* or *Smoking* and there will be plenty of people who will also agree with you. The government still has no authority to prohibit an act that clearly only affects those engaging in it. Their actions do not infringe on any of your rights. You do not get to stop somebody from doing something simply because you find it repulsive/sinful. Or harmful to the person doing the action.

[Cultural Jihad]

The government still has no authority to prohibit an act that clearly only affects those engaging in it.

The DOI Preamble mentions the rights to life, liberty, and the pursuit of happiness, not the rights to an early death, slavery to vice, and the pursuit of unneeded suffering.

[Tailgunner Joe]

I realize that your libertarian philosophy is summed up by this idea, but it's not to be found in the Constitution of these United States.

[CarolinaGuitarman]

"The DOI Preamble mentions the rights to life, liberty, and the pursuit of happiness, not the rights to an early death, slavery to vice, and the pursuit of unneeded suffering."

The Declaration of Independence has no preamble. I think the document you are confusing it with is the Constitution. I can see where you would make that mistake, as you are obviously not very well versed in either work. The Constitution is not a list of our rights, it is an enumeration of the powers of the government; if a power is not included in it, it says explicitly that said power does not exist. That's why a lot of the founders were very hesitant to include a Bill of Rights as they feared it would confuse people into thinking these were their ONLY rights. It seems that fear was well founded.


There are people who now think that if a right (to associate with those you wish, and engage in acts that do not affect anybody else in this case) is not made explicit then the people do not have it. So if some ignorant boob decides that any act is sinful, they think they have the right to force somebody else through the force of a gun to stop said act. They think that if they get enough like-minded boobs together to elect a similarly ignorant boob to public office, that that makes it legitimate. Cries of "Democracy!" and "Majority Rules!" overpower any ideas about rights and the constitution. In the process they shred the guts out of the documents they give lip service to on patriotic holidays like the 4th of July. We don't need foreign invaders to destroy us, we just need enough busybodies who think they know better then we do how to live our lives.

[Cultural Jihad]

The Declaration of Independence has no preamble. I think the document you are confusing it with is the Constitution. I can see where you would make that mistake, as you are obviously not very well versed in either work.

Go directly to jail. Do not collect $200, dodo.

[CarolinaGuitarman]

"I realize that your libertarian philosophy is summed up by this idea, but it's not to be found in the Constitution of these United States."


Yes it is. The Constitution limits government power, it doesn't enumerate individual rights. Unless you can find a government power specified in either state or federal Constitutions, it does not exist legitimately. The onus is on YOU to show where the government has the power to do something, not on the individual to show where in the constitution(s) they have the right to do something.
The onus is on YOU to show where the government gets the power to stop someone from doing something that does not infringe on anybody else's rights. Good luck, because you won't find it in the Constitution. If a Constitution did enclose such language, it would just make the Constitution immoral.

[Cultural Jihad]

People have a right to discourage unneeded suffering and death. (I am not surprised to hear that a self-avowed libertarian doesn't know the difference between the DOI and the U.S. Constitution, since there is little to nothing about the Constitution in their moral-liberal philosophy.)