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Judicial Fundamentalism

This column originally appeared as part of the Way of Politics series for the Democracy Cell Project, an IRS-approved 501(c)(3) created by former members of Kerry-Edwards 2004 blog team. The Way of Politics attempted to explore the intersection of religion, spirituality, and politics from a contemporary Deistic or secular and spiritual perspective.

President Bush's nomination of Harriet Miers ignited a firestorm on the right this week. Fearful that another Supreme Court nominee of a Republican President might eventually be transformed - though exposure to "elite opinion" from more liberal colleagues - into a voice of moderation and reason, many conservative pundits and politicians were uncharacteristically blunt about their lack of enthusiasm for Miers. Some were even calling for her nomination to be rescinded.

What these unhappy conservatives are seeking is an established judicial fundamentalist or, to use the term that Bush has often used, strict constructionist. What would a judge who adhered to strict constructionist judicial philosophy believe? According to Wikipeida:

Strict constructionism is a philosophy of judicial interpretation and legal philosophy that limits judicial interpretation to the meanings of the actual words and phrases used in law, and not on other sources or inferences. Adherents look strictly at the text in question rather than relying either on legislative intent (as gleaned from contemporaneous commentaries or legislative debate) or on metaphysical ideas such as natural law.

The underlying argument behind strict constructionism is that if a legislature truly wants to enact a particular law, they are capable of writing it down in plain English and passing it, and it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Thus, for example, Justice Scalia refuses to look at committee reports that often accompany bills to the House or Senate floor.

The White House may have anticipated the tepid conservative reaction to Miers. Her acceptance statement included the phrase "ensure that the courts meet their obligations to strictly apply the laws and the Constitution". These words were evidently intended as a coded message to conservatives that Miers was one of them.

Miers also spoke on Monday of her opposition to alleged judicial activism.

"It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society."

To my way of thinking, the ethos of the strict constructionist judge is a mirror image of that of the religious fundamentalist. For this kind of believer, every word of the Koran or the Bible reflects the inerrant word of God. The events described in scriptures must be treated as having literally happened as described, not as parables. Broad interpolation for time, place or culture is discouraged; and any suggestion that a precept might no longer be relevant in the modern era is heresy. As I've noted in earlier columns, this mindset would have been incomprehensible to the Founding Generation, all of who were products of the American Enlightenment.

As an illustration, consider an incendiary passage that I've cited in previous columns from Thomas Jefferson's August 1820 letter to William Short:

"My aim in that was, to justify the character of Jesus against the fictions of his pseudo-followers, which have exposed him to the inference of being an impostor. For if we could believe that he really countenanced the follies, the falsehoods and the charlatanisms which his biographers father on him, and admit the misconstructions, interpolations and theorizations of the fathers of the early, and fanatics of the latter ages, the conclusion would be irresistible by every sound mind, that he was an impostor."

The objects of Jefferson's scorn in this passage are none other than the New Testament authors themselves! And before you dismiss Jefferson's approach as anti-Christian, let me remind that this is the same Jefferson who lauds "the moral precepts of Jesus as more pure, correct and sublime than those of the ancient philosophers." I submit that if Jefferson had few reservations about deconstructing Matthew, Mark, Luke, and John in his time, it's a safe bet that he wouldn't have come down on the strict constructionist side of the fence in our time.

Here's another illustration, from John Adams, as expressed in a July 13, 1815 letter to F.A. van der Kemp:

"The question before mankind is - how shall I state it? It is, whether authority is from nature and reason, or from miraculous revelation; from the revelation from God, by the human understanding, or from the revelation to Moses and to Constantine, and the council of Nice. Whether it resides in men or in offices. Whether offices, spiritual and temporal, are instituted by men, or whether they are self-created and instituted themselves. Whether they were or were not brought down from Heaven in a phial of holy oil, sent by the Holy Ghost, by an angel incarnated in a dove, to anoint the head of Clovis, a more cruel tyrant than Frederic or Napoleon. Are the original principles of authority in human nature, or in stars, garters, crosses, golden fleeces, crowns, scepters, and thrones? These profound and important questions have been agitated and discussed, before that vast democratical congregation, mankind, for more than five hundred years...

"Thou are responsible to thy Maker and to thyself for an impartial verdict and judgment."

All the evidence that I've uncovered in my study of the Founders & Framers points to one inescapable conclusion. These men were, above all, broad-minded critical thinkers - and anything but literalists. It follows logically that they would expect posterity to interpret their handiwork in a similar fashion.

Moreover, by evoking the spirit of "a more perfect union" in the Constitution's Preamble, the Framers were committing the nation to a robust pursuit of justice, and of those ideals set forth in the Declaration - specifically, "that all men are created equal", and that they are "endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness".

In contrast, adherents to a strict constructionist approach would likely argue that fidelity to the letter of the law is sufficient for justice to be done. If a specific right is not enumerated in the text, like the right to privacy that Robert Bork denied, then that right may not be protected. When new situations emerge, it is the role of Congress to address these through statute or amendment. In fact, there have been fifteen such amendments to the United States Constitution since the original Bill of Rights. However, this is not always possible or feasible.

Consider the conflict over slavery. In a nation as divided along regional lines as America was in the 1850s, a constitutional amendment either limiting slavery's spread, or abolishing it outright, was impossible. Only the fighting of a bloody civil war, and afterwards, the forced passage of the Thirteenth Amendment as part of the process of Reconstruction, brought an end to slavery, and temporary relief to its victims.

In contrast, the decision of the Warren Court to act decisively in Brown v. Board of Education was instrumental in creating momentum for the civil rights movement, which would later bring the promise of America to the descendents of former slaves then suffering under the burden of segregation. Clearly, at that moment in history, both the legislature of the State of Arkansas and the United States Congress were either unable or unwilling to do the right thing, nearly ninety years after Appomattox. While Earl Warren has become the boogeyman for opponents of alleged judicial activism, the reasonable man or woman must insist Warren's critics answer this question: when cowardly or unjust legislators refuse to act, who but the Courts are left to champion the still unrealized ideals upon which this nation was founded?

Justice delayed is often justice denied; the human lifespan is simply too brief. And justice shouldn't always have to wait for political hacks and knaves on the wrong side of history to finally find God on his or her road to Damascus. Years later, after society has long passed them by, they almost always admit their error - while continuing to rail against the "philosophy" of the judge or Court who made them look foolish, but, in truth, better understood that someone had to act if liberty and justice were to be available, not just for a privileged few or even a majority, but truly for all.

Matthew Carnicelli, Copyright 2005. All rights reserved.
Originally published on October 9, 2005, as part of The Way of Politics series.