Strict construction

I've already remarked on how George Bush, in last night's debate, asserted that he would seek to appoint "strict constructionists" to the Supreme Court should an opening occur -- a position that, as I observed, has deeper ramifications than were discussed in the debate. These include undermining not only the right to choose an abortion but the very basic right to privacy itself.

But the problems with this approach to the law extend well beyond just these issues. It would be tempting to call the so-called "strict constructionists" deeply radical at their core, though that would be accurate in terms of their effect on the law. It would be more accurate, in fact, to label them profoundly reactionary.

"Strict constructionists" are not in favor of merely returning the nation to that mythical Golden Age of postwar America so beloved of conservatives when men were men, women were housewives, and Negroes knew their place. No, their brand of law actually hearkens back to an era in American history when civil rights and basic social equality were held permanently in abeyance by a court system whose first and last loyalties were to an elite ruling class of wealthy robber barons.

You see, "strict construction" is actually just another term for a kind of judicial philosophy called "legal formalism":

Legal formalism is a view in jurisprudence and the philosophy of law. Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their plain meaning and/or the intentions of their authors. Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. Instrumentalism is usually the view that creativity in the interpretation of legal texts is justified in order to assure that the law serves good public policy and social interests, although legal instrumentalists could also see the end of law as the promotion of justice or the protection of human rights. Legal formalists counter that giving judges authority to change the law to serve their own ideas about good policy undermines the rule of law. Another critique of legal formalism has been offered by the critical legal studies movement, which has argued that law is indeterminate.

Justice Antonin Scalia of the United States Supreme Court is noted for his formalist views about a variety of topics, particularly his view that the United States Constitution should be interpreted in accord with its original meaning and his view that statutes should be read in accord with their plain meaning.

Among the chief attributes of legal formalism is a callous indifference to the injustices inherent in a system of laws weighted in favor of a small class of wealthy elites:

The second characteristic of legal formalism is its indifference to substantive justice. Dominant groups and individuals exercise their power by subjecting every citizen to the same rules so that formal justice masks substantive social differences and inequalities. Legal discourse is isolated from the purview of political, social and ethical/moral discourses, and legal reasoning is severed from any external criterion which can be used to judge and evaluate social behaviour. Thus moral standards, ethical behaviour and, crucially, questions of justice are eliminated from legal reasoning. What the law is and what it ought to be are argued by legal practitioners to be independent questions. Indeed, modern judges are expected to be remote and disinterested.

Legal formalism was a dominant force in the American courts between 1865 and 1930. it reached its apex, probably, in the period 1890-1910, when it was predictable in its wholehearted defense of the interests of the ruling elite, the 1 percent of the population who controlled well over half of the nation's wealth.

The result was a society in which 60-hour workweeks for laborers in all fields of production was the norm; in which child labor was rampant and innately abusive; in which workers had no rights to unionize or otherwise organize; in which eight-hour days and weekends were utterly unheard of. Formal education was largely reserved for the children of the upper and upper middle classes.

This milieu is thoroughly described in J. Anthony Lukas' final book, Big Trouble, pp. 280-281:

... In that first decade of the new century, the Supreme Court, presided over by Chief Justice Melville W. Fuller, was not a particularly distinguished judicial body. President Theodore Roosevelt, increasingly at odds with the Court, accused it of assuming "functions which properly belonged to the legislative bodies" and labeled one recent decision "a very slovenly piece of work."

As early as 1895, two of its landmark decisions -- Pollock v. Farmers Loan and Trust Co., which invalidated the federal income tax, and In re Debs, which upheld a federal court injunction to break the Pullman strike -- left the impression that the Fuller Court was hostile to the aspirations of labor and the poor alike. A decade later, this reputation was reinforced by the notorious Lochner v. New York, which invalidated a state law placing a sixty-hour ceiling on the workweek of bakery employees, because it violated liberty of contract. Moreover, the Court asserted that private contracts were outside the scope of the law and thus the state couldn't interfere with them. Like no other case before or after, Lochner stirred public outrage at the Court's rigidity, preparing a fertile field in which the seeds of Progressive dissent could flourish. Other decisions -- Adair v. United States (1908), which invalidated legislation protecting union activity, and Ex parte Young (1908), blocking enforcement of laws governing railroad rates -- put the Court increasingly at odds with the Progressive era. Henceforth, critics writing within that tradition accused the Fuller Court of using the constitutional ideal of "liberty" to camouflage its defense of narrow class interests. [Emphasis mine. -- ed]

The prevailing judicial doctrine of the time has been termed "formalism," which one commentator calls "less a habit of mind than a habit of style, less a way of thinking than a way of disguising thought." Opinions were frequently "bombastic, diffuse, drearily logical, crammed with unnecessary citations." Underlying the formalistic style was the cherished notion that judges did not make law but merely discovered it in precedent or in the fount of all wisdom, the Constitution.

The cult of the Constitution can be read in the exaltation by Henry R. Estabrook, a New York attorney: "Our great and sacred Constitution, serene and inviolable, stretches its beneficent powers over our land ... like the outstretched arm of God himself ... O Marvelous Constitution! Magic Parchment! Transforming Word! Maker, Monitor, Guardian of Mankind!"

... By default, the intellectual leadership of the Court fell to two justices -- David J. Brewer and Rufus W. Peckham -- who reflected the business-oriented conservatism that held sway in Washington for decades before the century's turn. Of the two, Brewer was the stronger personality and his worldview the more bleakly reactionary. As such, he drew Theodore Roosevelt's private but "profound" contempt.

Brewer and Peckham favored a "self-regulating, competitive market economy presided over by a neutral, impartial and decentralized 'night watchman' state." If pressures were building for government to shuck some of its vaunted neutrality in order to avoid social chaos, Brewer at least was having none of it. In a speech to the New York State Bar in 1893 ... he asserted that "it is the unvarying law, that the wealth of a community will be in the hands of a few," warned of "the red flag of socialism, inviting a redistribution of property," and cautioned that, unchecked, "the wide unrest that fills the land ... will culminate in revolution."

What's notable about formalism is the way it manipulates the meaning of the law to achieve a desired and predetermined result, especially by waving "liberty" as a catch-all excuse for any kind of corporate abuse of working people's rights. This propensity was as common in 1904 as it is in 2004.

Similarly, when "strict constructionists" declare Roe v. Wade an illegitimate ruling by claiming that the Constitution contains no right to privacy, they do so through a very narrow reading of the Bill of Rights. While arguing that no privacy right is explicitly elucidated, they conveniently overlook those parts of the Constitution that inherently depend on such a right: the Third Amendment's prohibition against the forced quartering of soldiers, the Fourth Amendment's declaration of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". It's also imnportant to keep in mind the Ninth Amendment, which makes clear that the listing of individual rights is not intended to be comprehensive, and that "the people" have other rights not specifically mentioned in the Constitution. It is, in fact, hardly a far reach to ascertain that a right to privacy is one of those.

Legal formalism is to jurisprudence what fundamentalism is to theology. It applies the same kind of backward logic, in which a position or belief is arrived at beforehand, and then evidence is gathered from a narrow reading of select verses to "prove" it. Its outcomes, as a result, are extraordinarily manipulable. While formalists are fond of decrying the "activism" of legal realists, the reality is that their own brand of legal philosophy was every bit as prone (if not more so) to activism on behalf of narrow interests.

Formalism, in fact, is responsible for some of the great travesties of American jurisprudence. It was, in fact, the ruling philosophy in the much-reviled Plessy v. Ferguson case, which maintained that a doctrine of "separate but equal" racial separation (later overturned by that notorious "activist" ruling, Brown v. Board of Education) was constitutional.

So it was noteworthy that Bush, in the process of explaining his support for "strict construction," trotted out the example of the notorious Dred Scott ruling of 1856 as an example of an "activist judiciary":

Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

Actually, Bush had it precisely backward. In fact, the Constitution at the time declared Negroes were not full citizens. And the actual Dred Scott v. Sandford ruling, if you take the time to read it, was an exercise in an extraordinarily blind kind of formalism:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

... The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [60 U.S. 393, 405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

In other words, the justices were ruling in precisely the fashion that Bush prescribes for any future Supreme Court appointee: they strictly adhered to the text of the Constitution. "Formalism" as a jurisprudential style had not been identified in 1856, but it's clear that its tenets were the same as those undergirding Dred Scott.

Notably, the ruling makes a classic formalist disclaimer regarding the duties of the court vis a vis the realities of the laws it is enfording:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

Bush's "strict constructionists" -- contrary to his up-is-down characterization of them -- in fact, given the same legal circumstances, would be likely to reproduce not just Dred Scott, but Plessy v. Ferguson and Lochner v. New York. And they would herald, almost just as certainly, a new "Golden Age" of iron-fisted rule by the nation's wealthy elites.