Author: jsmckay

With the balloting complete, Ned Lamont’s clearly made it onto the ballot and forced a...

cross-posted at dkos. Listening to Bush attack his doubters during his Veteran’s Day speech...

     The nomination of Harriet Miers to the Supreme Court has again brought the issue of how judges should interpret our Constitution to the fore. It is an issue that scholars and jurists have wrestled with since our Constitution was written, and for good reason.  As a nation that prides itself on democracy, the idea that a handful of unelected judges can lay down the ultimate law of the land is a potentially scary proposition.  Surely there must be some way to assure that they aren’t simply acting on their own personal whims and prejudices.

    President Bush has assured the nation that Ms. Miers will handle this problem by sticking to a “strict construction” of the Constitution.  She will not “legislate” from the bench.  Now this may sound perfectly clear to many Americans, especially those who have been frustrated by the direction the Court has taken in recent times, but there’s just one problem: The idea of “strict construction” is a myth.

        The complex truth about the U.S. Constitution is that many of its most important concepts are written in ambiguous terms.  We are all guaranteed the freedom from “unreasonable” searches.  “Equal Protection” and “Due Process” are among our most cherished rights.  Yet while we may all agree that these protections are laudable, we often have considerable difficulty deciding exactly what these terms should mean.  The Constitution surely means what it says, but very often it falls short of saying what it means.    How are we to know what “process” is “due?”  When will we be able to tell that “protection” is “equal?”  What kind of searches are “reasonable” and what kind are not?  No, the idea of “strict construction” doesn’t get you very far when it comes to figuring out what these words, among the most important in our law, are to mean.

    Constitutional scholars will tell you that there are numerous theories about how judges should go about filling in these blanks.  Justice Scalia calls himself an “originalist.”  He looks for what the founding fathers would have meant by the term when they adopted it, and that’s the meaning he tries to give it.  Yet this approach is also beset with at least two major problems.   First, figuring out what a group of men meant 200 years ago is not always easy.  Where records exist at all, they are often far from clear and frequently contradictory.  The Founders were a spirited bunch and they often disagreed about the meaning of what they were writing.  Second, deferring to the intent of a handful of long-dead men from a different century doesn’t seem a great deal more “democratic” than deferring to a group of judges on the bench today.  Is legislating from the grave really better than legislating from the bench?

    “Non-Originalists” take a whole different approach.  Scholars and judges who subscribe to this school take many forms, but generally tend to see the ambiguity of clauses like “due process” and “equal protection” as a good thing.  To their way of thinking, the vagueness of these terms is part of the genius of our Constitution because it invites the Constitution to evolve over time, incorporating changing notions about our most basic principles. Current perceptions of equality would never tolerate making African Americans sit at the back of a bus.  Fairness in this era means we give people a lawyer before we attempt to take away their freedom.  “Non-Originalists” believe it is right and good to interpret the Constitution’s ambiguities according to modern realities, even if those realities are in themselves sometimes ambiguous or at odds with the way the Founders might have done things.

    This is but a glance at a subject that has consumed some of our greatest legal minds since the principle of judicial review was first established in Marbury v. Madison in 1803.  It’s important and it is not simple.  Neither Harriet Miers nor anyone else who might serve on the Court will be able to “strictly construe” the U.S. Constitution.  To suggest that this is possible is to perpetuate a myth upon the American public.   Harriet Miers, like all Justices, will need to find the meaning of the Constitution’s ambiguous but critical guarantees elsewhere.  The “elsewhere” she finds will not derive from any simplistic absolute about how the Constitution should be interpreted.  It will derive from who she is as a person and whether or how she might evolve as a person over time. That’s the nature of our Constitutional beast, and it is exactly as simple or complex as the person who is wearing the robe.