Strict Constructionists and Judicial Activism

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Those who are sometimes called strict constructionists call it judicial activism when a judge first enumerates a right that is not explicitly formulated in the Constitution. The standard liberal response to this is that the 9th Amendment allows for rights that are not enumerated in the Constitution. Thus there are rights that are not listed, and therefore it's not judicial activism for a judge to proclaim what they are. This seems to me to be a fallacious move.

The 9th Amendment acknowledges the existence of rights that the Constitution doesn't enumerate. It doesn't say what they are. It's an interesting case of indeterminacy in law, because it declares that something is true while not filling out any details at all about what it makes legally true. So the right for gay people to engage in sodomy, for instance, is not in the Constitution on the grounds that the Constitution admits that there are some rights that aren't enumerated. The Constitution doesn't just leave it open that there are rights that it doesn't cover. It says that there are such rights. That's what's wrong with what some conservatives say. The rights explicitly in the Constitution aren't the only ones we have. Still, the Constitution doesn't say what those rights are, so it is going beyond the Constitution to claim that some purported right is one of the ones the 9th Amendment might refer to. It's therefore judicial activism.

One might object that, if a judge can't legally enumerate these rights that exist, then there must be no way to have them enter law and be enforced. That's not so. There's a constitutionally mandated way for new rights to be enumerated. You pass an amendment. That's what the 14th Amendment, for instance, was all about. It enumerated a right not made explicit in the Constitution. If judges had instead enumerated that right and not allowed the constitutionally mandated process of enumerating rights through amendments, it would have been judicial activism. If it had been ok for a judge to accomplish the same thing the way judges now seem to think they can do, then what was the point of going through the constitutionally-mandating and very difficult process of building that right into the Constitution? Doesn't it assume that the right isn't there, even if this was one of the rights that the Constitution says exist without enumerating?

The fact that the Constitution declares that there are rights that it doesn't specify does not tell us what those rights are, and it is indeed judicial activism to declare what one of them is from the bench if no amendment has placed it in the Constitution explicitly. The Constitution leaves it open that there's a right to privacy and that such a right to privacy gives a right to an abortion. It leaves it open that gay people have a right to sodomy. It also leaves it open that a brother and sister have the right to have sex with each other. It leaves it open that I have the right to marry my adult child. It leaves it open that I have the right to more than one wife. The way to determine which rights are the ones it's referring to is to make those rights explicit by affirming them explicitly in the Constitution. Otherwise we don't know if those rights are the ones it's talking about.

One thing that strikes me as unusual about this whole issue is what the nature of these indeterminate rights is supposed to be. Are they moral rights or legal rights? It makes no sense to say the latter. If the Constitution creates all these legal rights in the 9th Amendment without enumerating them, then it's basically making some legal fact that isn't about anything. It's a fact that some rights beyond the ones listed exist, legally. It's legally true that we all have rights that no one has ever said anything about. What makes those rights? They're declared to be rights, but there isn't any right that you could list that would be one of those, since it doesn't make any particular right be one of those rights.

This reminds me of the confused view that there are truths about the future of the form "Either A will occur, or it won't occur" without it being true that A will occur and without it being true that A won't occur. That's another discussion, but my resistance to the idea that the 9th Amendment creates legal rights seems to me to raise the same problems. How can it make it true that some rights exist without it being true of any right that it was thus created?

That's why I don't think it could be talking about legal rights. It must be referring to moral rights. We have moral rights that the Constitution doesn't give us as legal rights. This makes much more sense. If there are moral rights that aren't yet legal rights, then it isn't creating anything at all. It's just acknowledging that as other rights need to be enumerated legally, we should do so, because there are moral rights that the Constitution hasn't made legally binding.

Of course, now we have to be careful. Not every moral right should be legally enforced. I have the moral right to gratitude, but we don't want laws that require gratitude. For one thing, it won't be gratitude if it's compelled. For another, laws aren't about heart attitudes. They're about behavior. So the existence of moral rights doesn't go very far toward explaining why we should have judges constantly adding new legal rights that aren't enumerated in the Constitution. Therefore, I conclude that the idea doesn't make all that much sense either way. None of this moves me away from the strict constructionist view even a shred.

I do want to note one further element. There's one way in which Justice Scalia, Chief Justice Rehnquist, and other strict constructionists (whether they like the term or not; Scalia doesn't) are not pure strict constructionists, while Justice Thomas is closer to that. The former two accept precedent as grounds for deciding cases in ways that Justice Thomas does not. Now that Roe v. Wade is in effect, now that Lawrence v. Texas is in effect, it will be harder for weaker strict constructionists like Rehnquist and Scalia to pull away from these judge-created rights. They see the precedent as creating these rights, and those rights are thus real, even if they weren't in the Constitution and shouldn't have been created apart from an amendment.

The reason Justice Thomas doesn't accept precedent in this way is that he doesn't see that as a way to create legal rights. It's illegitimate judicial practice, and it doesn't create what only an amendment can create. This is the reason Justice Thomas is really in a category by himself with respect to his judicial philosophy, and this is exactly why he's my favorite justice. Precedent doesn't create rights because precedent is just judicial activism in the past. If you can't create rights that way, then why act is if the mere fact that the decision is in the past has created the right? Things that don't create rights now didn't create them just because they already happened. I can't see why Chief Justice Rehnquist and Justice Scalia don't see that.

Update: Brandon has an excellent followup to this at Siris.

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Associate Justice Antonin Scalia has authored important majority opinions boosting our rights under the First Amendment (like R.A.V. v. St. Paul and Republican Party of Minnesota v. White), Fourth Amendment (such as Kyllo v. U.S.) and Sixth Amendment ... Read More


It was my impression that article 9 leaves the people those rights ... however the States are to be free to take them. So Conservatives argue that the Court was (or activist) in Roe v Wade and Lawrence, but in such a way to make it clear that a State law could over-rule it. What "constructionists" disagree with in Roe v Wade, is that it has subsumed to the Federal/Consitutional level that right of "privacy" which is they feel reserved for people (and states) and since the Federal courts have ruled on it, the States can no longer over-ride that, which should be their right.

I can't see why Chief Justice Rehnquist and Justice Scalia don't see that.

C'mon, it's not like Rehnquist and Scalia are stupid or something. I'm sure they completely understand Thomas' rationale. They simply disagree with it. Now I'm not privy to exactly why they disagree, but I imagine it is becuase they are (little "c") conservative through and through.

(little "c") conservatism's basic value is that it should be hard to change something. And once you change something it should be hard to un-change it. You are conserving the past--hence the name. So even if Rehnquist and Scalia disagree with how something was done in the past, they are reluctant (though not completely unwilling) to undo it as a matter of principle. It seems rather anti-conservative to hold Thomas' stance.

Our entire legal system is based on this kind of accretion of past laws and decisions. Laws build on older laws, even if the older laws were passed by illegitimate means. Precedent builds on precedent even if the older precedent was badly decided.

Even if a law has been passed wrongly, it still has the force of law and must be respected as such until it is repealed or overturned. Similarly, precedent, even if badly decided, continues to legally interpret the law until it is overturned. Rehnquist and Scalia respect that. I find it odd (and somewhat arrogant) that Thomas doesn't, though I understand why he disagrees.

But if it guides only until overturned, and it was wrongly decided in the first place, then isn't it their moral responsibility to overturn it? Why the hesitation? I don't think they really see the point. I'm sure they're familiar with the words Thomas uses to defend his opposition to stare decisis, but I'm not sure they grasp what he really sees in his view. Maybe I'm just too much on the side of Plato here rather than Aristotle in terms of seeing moral rightness. Plato didn't think you had really grasped what was right about something if you couldn't bring yourself to do it, and you haven't really grasped what's wrong about it if you can do it. It's a kind of moral understanding. I don't think Scalia and Rehnquist lack the intellectual insight to see what it is Thomas is saying. It's that they don't see the moral rightness of undoing badly decided precedent.

they don't see the moral rightness of undoing badly decided precedent

Exactly right. I think they understand why Thomas would see undoing badly decided precedent as a moral imperative, but they themselves do not see it as a moral imperative.

Again, I can't speak for why they don't, but I imagine that the reasonsoning goes along these lines:

1)Suppose precedent P establishes right R.
2)Right Rs moral goodness is independent of how it was established.
3)Similarly, Right Rs legal validity is independent of how it was established.
4)Therefore, there is no reason to overturn Right R soley on the grounds that Precedent P was badly decided. Rather, conservatism would prefer that Right R be overturned on the basis of the goodness or badness of R itself.

Defense of (2): Most would argue that the Right of Freedom of Religion is a moral good and is good for the nation even if it had been established by precedent instead of by amendment.

Defense of (3): As long as Right R does not conflict with the Constitution--and it doesn't becasue of the 9th Amendment--then Right R is legally valid. (This presumes that if Precedent P was inappropriate, then it was merely decided badly and not illegally. I don't know if this argument holds if Precedent P was decided illegally--though I don't even know how you would illegally decide a case.)

The whole argument is fairly intuitive in other realms. For example, even though we both think that the Revolutionary War was immoral and was an improper for the Colonies to gain independence, neither of us think that we should be working to overturn the US's sovereign nation status. But if you were to apply your reasoning to it, we have a moral obligation to do so.

Your reasoning seems to overlook the fact that while mistakes have certainly been made in the past, the consequences of those mistakes might be worth keeping.

[Note: I suppose you could illegally decide a case if you were being coerced, or if you weren't legally a judge with the correct jurisdiction. But noone seems to be agruing that this kind of thing is happening.]

A quibble about the accuracy of this statement:

[The 14th Amendment] enumerated a right not made explicit in the Constitution.

I think it would be more accurate to say that the 14th Amendment changed the Constitution so that it now explicitly enumerates a new right. After all, amendments are actual changes to the Constitution and as such are a part of the Constitution.

The upside of this is that, if you are correct that the only legally appropriate way to establish rights is through amendments, then there are no (and there never will be) appropriately established legally recognized and enumerated rights outside of the Consitutuion.

I don't know if you intended this or not, but that is where your reasoning takes you.

Use a concrete example: Consider privacy. A right to privacy is not mentioned in the Constitution. Do we have such a right?

Conservatives used to argue that we do have such a right. The Supreme Court argued that privacy is collaterally protected by the 3rd, 4th, 5th and 14th Amendments, among others -- and in Griswold v. Connecticut found that the right of privacy of a married couple prevents the state from policing the sex activities of the couple, at least so far as their use of condoms.

Was that "judicial activism?" Are you arguing, then, that there is no right to privacy?

Madison was clear on his view: Any enumeration of the rights of a citizen is risky, because no doubt someone will claim that the list is exhaustive rather than inclusive. He said citizens have all sorts of rights that were not enumerated, and some that probably were not even known at the time.

I suppose Madison would be, to conservatives today, "a suborner to judicial activism." He's still the Father of the Constitution, however, and his views shouldn't be wholly disregarded by the right in their rush to prevent the Constitution from protecting citizens.

How many conservative do you know that say the rights enumerated in the Bill of Rights are the ONLY rights we have? Most I know say merely that they are the rights specifically protected by the US Constitutiuon. The rest of our rights rest in the states and the individual. I believe that there may be a misunderstanding, based upon the words that are being used. The only power that the government has is what we give it. We turn over, in whole or in part, a right or power of ours to the government. The rights of man are soverign; there is no greater human authority.

Of course we have a right to privacy, except where we give an exception to a governmental body (whether federal ie I cannot make up my own rules about how I will declare bankruptcy; or local ie zoning regulations). But unless I give a governmental body the authority to regulate my action, it does not have that authority.

Justice Thomas is my favorite justice as well, and for probably many of the same reasons. I believe that you are being a little hard on Justice Scalia. He may be a little less willing to overturn precedent, but he agrees with Thomas a lot, just sometimes for different reasons. I have heard him say that he is willing to overturn precedent if he believes it's incorrect. Rehnquist, on the other hand, refused to overturn Miranda because he thought that Americans were "used to it."

Both sides of the Bill of Rights argument were correct, Leftists are more than happy to believe that the Constitution means whatever they want it to mean. They are more than happy to have government conrol more and more of our lives, unless it affects some of their favorite things like sex (abortion, homosexuality, etc...) The BOR is the only thing that protect us from tyranny, yet it also has been stretched to violate the 9th amendment--don't I have the right to privacy when filling in a wetland on my property (nothing intersate about that!) and the 10th Amendment--you'd think the Commerce Clause made the congress a super-kingship.

3)Similarly, Right Rs legal validity is independent of how it was established.

I'm inclined not to agree with this. How it was established is how it gets its legal validity, and it's established in a way contrary to the spirit of the Constitution then it doesn't have legal validity. So I think your argument for this isn't going to convinced me. I don't think this is simply badly established. I can't say it's illegal if there's no law it violates explicitly, but it seems to me to be contrary to the way the Constitution would have rights be enumerated. If there's no law, but a court simply declares something to be treated as a law, does that have legal legitimacy? Did Dred Scot count as legally legitimate when there was no law passed that declared what Dred Scot said? I just don't think that counts as legal.

I'm not sure I'd say the American Revolution was illegal. I just think it was immoral. If you want to ask whether it's legal you have to figure out whose laws you're talking about. It wasn't legal in the eyes of the natives. It probably wasn't legal in the eyes of the British. It was legal in the eyes of the new American government. So is our country now legally legitimate? Well, it's legally legitimate by our own laws. It's been declared legitimate since then by the British government. The natives still view it as illegitimate in many cases.

I think you need to get into some serious philosophy of law to figure out what to say about that, and I don't know enough about the possible views to say much more than that we will need to be careful here not to confuse moral legitimacy with legal legitimacy. The latter has to be within a legal system. The former is not. It may well be morally illegitimate for the U.S. to remain a sovereign nation while being perfectly legal, because it's our laws. Another perfectly consistent view is that the consequences argument would justify the U.S. morally while still leaving it illegal in some sense (though it wouldn't be illegal by its own laws). I'm not sure what I think about any of these things.

The upside of this is that, if you are correct that the only legally appropriate way to establish rights is through amendments, then there are no (and there never will be) appropriately established legally recognized and enumerated rights outside of the Consitutuion.

No, as Steven pointed out. There are state constitutions or other ways states can give rights if their constitutions give other ways.

Ed: I don't have time to look at all those amendments given in favor of a right to privacy, but I haven't ever seen a right to privacy in the Constitution. I'd tend to be hesitant to try to find it anywhere, regardless of the issue the right to privacy is being used to support. The cases you describe sound judicially activist to me.

Was Madison talking about legal rights or moral rights? I ask the same to Steven. Is the obvious right to privacy a legal right not mentioned explicitly in the Constitution, something you think can be derived legally from the Constitution, or a moral right not in law at all?

Good question, not one that I am sure that I can answer. I really don't have the theological training that I believe would be required to answer the question. Since I believe that God is the author of our rights, it is really impossible for me to differentiate between the two.

I believe that government has but the powers which we give it; I do not believe that God has ordained a theocracy. I believe in what I consider a Christian Libertarianism. Governments sole duty is to protect the liberty of its citizens. It is the duty of each man to weigh his salvation himself. There is a right and wrong answer and God will judge our country harshly if we make the wrong decision (for our government is answerable first to God and then to man.)

Is sodomy a moral right? Of course not! But I also do not believe that the government has the authority to regulate it. I do not believe that government should endorse it and fight vigorously to stop its endorsement, but I leave men free to search the truth. If you seek the truth, don't be surprised if you find it.

I consider our federal constitution to mean what it actually says, including its amendments, as meaning was understood when passed & ratified. It seems to me there are 2 judicial philosophies:strict construction or what many call original intent; and judicial activism which most modern liberals embrace as valid. I am unaware of any examples of conservative jurists using judicial activism to advance new conservative ideological views into our laws. Of the 2 judicial philosophies I cite, one is valid AND constitutional (original intent), while the other is invalid AND unconstitutional (judicial activism). Judical activists insert their own personal views and desired outcomes into constitutions and laws through "interpretation" rather than merely applying our constitutions and laws in adjudicating disputes within jurisdiction of courts.

Most journalists, the media, and practitioners of judicial activism claim that judicial activism and original intent are both valid and proper for use and debate in american jurisprudence. Most law schools also embrace AND teach the validity of judicial activism as a valid form of jurisprudence. In reality, there is only one valid method for applying constitutions AND laws, and that method is most accurately described/defined as strict construction/original intent. Judicial activism, regardless of ideological motivation (from the left or right), is an unconstitutional usurpation of powers not delegated by our constitutions and constitutes judicial tyranny.

I invite other views and comments pertaining to the views I advance in this post.

Chas, there was an example already given in the comments above. Conservatives argued that a right to privacy occurs in the Constitution, though it doesn't explicitly give one, and they used that to overturn laws against even married couples using condoms. Another example was Dred Scot. Those conservatives happened to be Democrats, but they were conservative in the sense of wanted to hold onto the institution of slavery that had existed as a tradition since the beginning. The Constitution does give slaves some rights, and you can see that if you look carefully, but I believe Dred Scot saw slaves as having none. Maybe I'm mixing up the details here, but conservatives and liberals alike nowadays frequently point to Dred Scot as judicial activism, and there's clearly a sense in which the people behind Dred Scot were conservative.

It's also worth being aware of the standard defense of the idea that the Constitution is an evolving document. The main thrust of the view comes from the fact that any case before the Supreme Court is one the Constitution is unclear on, or it wouldn't be before the Court. Once you have that, it just about follows that every Supreme Court decision is judicially activist.

Now I resist this argument. Making a decision on what the Constitution says can involve giving it a new interpretation, which I think counts as changing it, it can involve reaffirming what it originally meant, which doesn't count as activism in any sense, or it can involve simply saying that the Constitution doesn't say a thing about the issue and thus send it back to states. The second and third options are not redefinitions of an evolving document.

The choice is between (1) seeing something there in the language and the language would originally have been interpreted by a normal English speaker at the time that decides the case and (2) not seeing anything and sending the case back to states. Those are clearly different from finding something not there but using evolving standards to treat it as if it's there. It isn't simply that it's not there one way or the other, and one side sees it while the other doesn't. In the cases where it's not there the right thing to do is not to decide. The complaint says that any case worthy of the Supreme Court will require activism, because it will require saying something not in the Constitution, but that just doesn't follow.

I say all that to make it clear how the argument for the more liberal view of judicial practice is supposed to go, because you can't argue against it if you don't understand it, and I think most conservatives don't understand it. They therefore don't see why it's a bad argument and thus don't have good support for their own view. I think the support is there, but most of the catch-phrases I see supporting it don't get to the bottom of why it's the right view.

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