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February 08, 2005

two opaque claims about constitutional law

Don Herzog: February 8, 2005

At least since the Nixon years, American conservatives have rallied behind two connected claims about constitutional law, and so about what judges should do.  One:  judges should offer "strict construction" of constitutional language.  This sober posture is supposed to save us from the villainous "activist judge" who "legislates from the bench."  Two:  judges shouldn't invent or make up law; they should apply the law that is already there.  Take for instance this exchange from Scarborough Country, 11/26/04:

WALTERS:  Well, let me first respond to the statement that the First Amendment does not require a separation of church and state.  It absolutely does.  The United States Supreme Court has recognized over and over again that the establishment...

FERRARA:  That's false.  Those words don't appear in the Constitution.

Both claims about law seem to yield lots of political mileage, and many liberals react by scorning them as benighted or pernicious.  But I can't make sense of either claim.  I want to say that they're not pernicious, but meaningless.  When people invoke them, I act faintly embarrassed and try to change the subject.  Here's why.

Strict construction means applying the language of the Constitution to what it straightforwardly refers to, not here's the connection using it as a springboard to make stuff up.  (If you think that strict construction means originalism, that is, some version of appealing to the intentions or understandings of the framers or ratifiers, hold your fire:  I'll offer another post on what's wrong with that view sometime soonish.)  Well, that gets you to the rule that the president has to be at least thirty-five years old (art. II, sec. 1, cl. 5).  It gets you very little else.

Suppose you're wondering whether the Constitution bans or permits (or requires!) affirmative action.  If only because you've been assured that it's the legally relevant provision, you turn to the fourteenth amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So what's the strict construction of that language?  Does affirmative action deny equal protection of the laws?  Stare at that language all day long and you won't find the answer.  It requires further interpretation.  Maybe the best account is that the amendment requires the state to be color-blind and so bans affirmative action.  (But the language doesn't even mention race!)  Maybe the best account is that the amendment forbids practices that subordinate racial minorities, and there's room for the legislature to decide that affirmative action doesn't do that.  Maybe the best account is that there's no cause for concern when a white majority disadvantages itself.  But again, stare away all you like, and no "strict construction" awaits you.  For the very same reason, the contrast between judges who "invent" law and judges who "apply" the law that's "already there" is bogus.  Judges are in the business of interpreting the law, and interpretation is neither invention nor discovery.  And so I do not discard "strict construction" because I wish to license activist judges to legislate from the bench.  I strenuously reject that villainous activity, but I see no reason to embrace the nonsense of strict construction to save us from it.

"But come on, Don, you know perfectly well that judges make stuff up!  Where in the Constitution is a right of privacy?  Where does it say anything about abortion?"  Sorry, no go.  Griswold, which (in)famously found a right of privacy lurking in "penumbras, formed by emanations" of various provisions in the Bill of Rights, might be wrongly decided or badly reasoned.  But not because it "made stuff up."  Ditto Roe, which extended that right.  Whether there's a constitutional right of privacy is just a complex interpretive question.  It's not about invention or discovery.  Nor do we get anywhere by suggesting that judges shouldn't stray too far from the constitutional text, because the metaphor of distance is unintelligible.

I suspect that "strict construction" isn't really a jurisprudential view at all, not only because it's analytically threadbare, but also because its proponents deploy it in ideologically selective ways.  Consider the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Judges and other interpreters have to decide what every one of those terms means.  "Freedom of speech" has to be a term of art.  If you think it just means "speech," so that Congress is forbidden to abridge speech, you'll have to swallow some remarkable implications:  no laws against commercial fraud, criminal conspiracy, price-fixing (an agreement to change prices is criminally actionable even if neither firm acts on it), and on and on.  So too, I don't myself believe that "separation of church and state" is an illuminating abstraction, but you can't rule it out as a sensible interpretation of the amendment by insisting that "those words don't appear" there.

But let that go.  You will notice that the amendment says nary a syllable about freedom of association.  So you could dutifully chant the mantra:  "It isn't there!  They made it up!"  If you like.  (I don't.)  Made up or not, though, that right motored Dale, where the Supreme Court ruled that New Jersey's public accommodations statute could not constitutionally be brought to bear to require the Boy Scouts to admit an openly gay man as a scoutmaster.  Why not?  Writing for the Court, Chief Justice Rehnquist explained that it was because of the Scouts' "First Amendment right of expressive association."  Funny, but I don't hear any strict constructionists denouncing the opinion.

In his book on The Rehnquist Choice, John Dean quotes a memo that then assistant attorney general Rehnquist wrote on the ill-fated nomination of Clement Haynsworth, Jr.:

A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs — the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution.

Dean ridicules the view:  "for Rehnquist, a strict constructionist was anyone who likes prosecutors and dislikes criminal defendants, and favors civil rights defendants over plaintiffs."  That charge sounds unfair.  Rehnquist's memo doesn't define strict construction in those terms, or at all.  It just tells us where people with that jurisprudential view, whatever it is, will tend to come out.

Dean is jumping to the view that there's no there there, no actual offstage view that Rehnquist could produce onstage.  The jump is right, though it's missing the kind of justification I've supplied here.  Oz thunders, "pay no attention to that man behind the curtain!"  I'm afraid that in the museum exhibition of jurisprudential views, if you rip aside the curtain marked "strict construction," you find — nothing.


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» States and Rights from thesciolist
Left 2 Right has an interesting post about "strict construction" and Constitutional language, pegged to the phrase "separation of church and state." The point of it is the old one that Constitutional language is just dead letters until illuminated by... [Read More]

Tracked on Feb 8, 2005 8:29:09 PM

» States and Rights from thesciolist
Left 2 Right has an interesting post about "strict construction" and Constitutional language, pegged to the phrase "separation of church and state." The point of it is the old one that Constitutional language is just dead letters until illuminated by... [Read More]

Tracked on Feb 8, 2005 10:59:28 PM

» Strict Construction or Original Understanding? from Hennessy's View
Over at Left2Right, Don Herzog claims that conservatives worship at the alter of "strict construction"... [Read More]

Tracked on Feb 12, 2005 12:29:15 AM


Posted by: noahpraetorius@hotmail.com

Not a lawyer just an observer. It seems to me that there are those that wish to use the courts to overthrow the will of the people and to subvert representative democracy. Why else should liberals be in such a frenzy over the prospect that Bush will probably nominate 2-3 Supreme Court judges in the next 4 years (the right is in a frenzy also). Was this state of affairs anticipated by our founders?

They made it very difficult to amend the Constitution for a reason. Our political culture has almost made the Constitution a dead letter since the Supreme Court decision in the 30's greatly expanding federal power under the Commerce clause. We conservatives want to go back...call us knuckle dragging primitives but that is what we want.

Posted by: noahpraetorius@hotmail.com | Feb 8, 2005 7:25:16 AM

Posted by: LPFabulous

On the other hand, Don, there's something to be said for not completely turning the intentions of the wording of the Constitution directly on their head. The quote you provided from Scarborough Country is a good example, with this talk of "separation or church and state." Now, in some places, the Constitution is vague and problematic (like the equal protection clause). In others, it's pretty crystal clear. The First Amendment says "Congress shall make no law... respecting an establishment of religion." A lot of folks seem to think that means "separation of church and state," which is about as gross a perversion of those words that I can imagine.

First, Congress obviously has no power to establish a federal religion. It was never given that power by the Constitution, so it can't have it (a la the Tenth Amendment). Second, that means the obvious purpose of the establishment clause (unless we've lost the ability to define "respecting") is to PROTECT state religions from interference by the feds. If Maryland wants to be a Catholic state - which it was at the time the Constitution was adopted! - then Maryland is well within its rights. That means school prayer is not only constitutionally okay, it's constitutionally PROTECTED so long as the states have adopted it legitimately through their own legislative processes.

So yeah, you're right that the Constitution is sometimes tricky and needs interpretation that "strict constructionism" has no hope of providing. But views like this are the ones most often used to completely pervert the parts of the Constitution that are perfectly transparent to anyone who has a dictionary of 18th century English.

Posted by: LPFabulous | Feb 8, 2005 7:50:14 AM

Posted by: amh

Noah- Ahhh, yes..the good 'ol days of the late 1800s and early 1900s. Wait....no women’s rights? no black/minority rights? child workers? no worker rights? dirty grimy factories where the workers were practically slaves? the Great Depression? the immense disparity of wealth? no business regulations? rampant monopolies?

Wait your right...these were the good 'ol days I want to go back to!!!! Maybe this is not what you think of, but that was life for the 'regular' joe (or joann) back then. That is what you really want? If there was no 'activist' judges I would not be able to vote and have next to no rights (I am a women) and I would not be with my boyfriend (who is black). When conservatives hem and haw about judges infringing on the 'majority's will' I laugh...majority doesn't make right.

Again, if judges did 'strict construction/interpretation' of the constitution- all the rights I mentioned above would never have come to pass....unless you are saying you are against all these rights and that these 'liberal' judges were wrong to force these things onto the 'will of the majority'

(damn pesky women/blacks/poor people...they should know there place!! sorry...had to be a little snarky at the end...I am not saying you have this view...)

Posted by: amh | Feb 8, 2005 7:59:06 AM

Posted by: Jay Cline


Excellent post.

Some people forget that the Judiciary is in fact the third leg in our constiutional system, with its own rights and perogatives. Surveying American history, it is amazing just how brilliant these founding fathers were.

I wouldn't want to be subject to the vagarities of the mob on the left anymore than the mob on the right. Or even the middle.

Thanks for the civics lesson!

Posted by: Jay Cline | Feb 8, 2005 8:08:24 AM

Posted by: S. Weasel

If there was no 'activist' judges I would not be able to vote and have next to no rights (I am a women) and I would not be with my boyfriend (who is black).

Uhhhh...would it be unkind to correct this, or should we all just pretend it didn't happen?

Posted by: S. Weasel | Feb 8, 2005 8:49:43 AM

Posted by: bakho

The courts are the protection of last resort of the rights of the minorities against the whim of the majority. However, the desire and ability of the courts to protect the rights of the minorities is dependent upon the political support of the majority for protection of minority rights. The argument over "strict construction" is in the end an argument about minority rights.

Posted by: bakho | Feb 8, 2005 9:20:23 AM

Posted by: Jim Hu

S. Weasel,

Let's just pretend we'll deal with it when Don gets around to originalism...and then hope the troll has left by then.


IANAL either, but doesn't Section 1 of the 14th apply first amendment rights to the States? Even without that, I thought the application was only to public schools. Provision of funding being viewed as a form of establishment favoring one religion over another. Real lawyers can correct us both.

Posted by: Jim Hu | Feb 8, 2005 10:08:32 AM

Posted by: john t

Don H -AMH Mr Herzog ,refer to E mail sent by yours truly. A very few points however.14th amend doesn't mention race,come on everybody knows the authors had Chinese coolies in mind. "Swallow someremarkable implications---no laws against fraud criminal conspiracy etc." Yes Mr Herzog a strict interpretor would ban laws against crime.Griswold,I gather we should ignore why laws are written and adopt penumbra[ a partial shadow] but at least Douglas got the 3rd amend in there[quartering of troops]. Can one invent thru interpretation? Go figure. As to Dale,I'll go with the right of peaceful assembly,common law and tradition,a real bugbear I know. If I may modify your close"rip aside construction and you are left with nothing but opinion". But I'm stuck on the notion that laws are wriiten for a purpose and the pupose can serve as a discernable guide. AMH just to tip you off,the anti-trust laws and food and drug laws wer written in the 1880's,The 19th amend was ratified in the dark age of 1920,and so on. Relax.

Posted by: john t | Feb 8, 2005 10:45:36 AM

Posted by: LPFabulous

Jim Hu -

Yes and no. The 14th Amendment did give rise to an incorporation doctrine (certainly the "privileges and immunities" part naturally lends itself to such a reading), but I hold that applying the establishment clause that way is illegitimate. The establishment clause is rather clearly a protection afforded to the several states by the Constitution. Since the privileges and immunities are of US citizens, incorporating establishment is already silly, in that establishment has nothing to do with US citizens. Further, it's patently bizarre to take the establishment clause, which was created to protect states, and wield it like a club against them. On any reading of the 14th Amendment, it can't possibly demand that we take away rights previously granted.

Also, if all we're talking about is funding, I can't see a problem. If the fedgov insists on funding public schools (which, I might add, has been such a smashing success - not), then it can't withhold funding simply because Maryland is acting within its rights. I guess the appropriate reading there is that, because the fedgov funds ALL public schools regardless of what religion their home state establishes (if any), it can't really be said to be favoring any one religion over another. If Alaska goes Buddhist, its schools would have just as much claim to funding as Baptist schools in Georgia or Catholic ones in Maryland.

Posted by: LPFabulous | Feb 8, 2005 11:06:49 AM

Posted by: Tom Perkins

Please forgive the reptitiveness of the post, little time for editing.

The "establishment" clause is intended to prevent any federal monies from being spent on religious purposes--as originally concieved of, it meant sectarian Christian purposes, such as funding a Baptist church or Catholic monastery. Is clear to me that the 14th amendment applies that restriction to the states and subordinate jurisdictions. There is no indication that the founders intended that people participating in politics in any branch leave their religiously (no matter how sectarian) aware consciences at the door. They assumed a generally protestant Christian nation, and had no difficulty with paying a person to say prayers at the opening of Congress. They did not generally have any difficulty with Catholics or Jews being memebers of the nation at large (clearly, Maryland had no problem with Catholicism).

It is a mystery to me, where the constitution is clearly a supermajoritarian document, where the ACLU derives the idea that the religious feeling of an overwhelming fraction of the population (a supermajority would surely support most of the actions the ACLU has lately made headlines denouncing) can be ignored and legislated against from the bench, with respect to such things as religious organizations making use of public resources (student clubs meeting after school hours on campus), privately funded creches being placed on public property, acknowledgements that our laws historically have a religious basis (even the Al. 10 cmdts judge), and the relatively recently adopted motto on the money.

To put it another way, unless some constitutional principle which is assumed to exist by the continuously existing supermajority which legitimizes the constitution and government and is expressed in the text of the document or existant in the debates of the persons adopting the text can be shown irretrievably to conflict with what had merely been assumed to be constitutional, but never examined previously in the light of that principle, there is no legitimate construction of the constitution which finds the thing to be unconstitutional, what ever it is.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Feb 8, 2005 11:07:05 AM

Posted by: Tom Perkins

LPFabulous, I could disagree with you more, but it would take some effort. The establishment clause has nothing to do with protecting the the states as such directly. It is nonsensical to think a state government or the people in it (the governemnt officers and employees uniquely) could be compelled to worship as the feds directed apart from the other people living in the state without the clause. I think I misunderstood you. The establishment clause protects the individual citizens of the United States--and in the unlikely event that a citizen of a state is not a citizen of the United States such a person as well, and the obverse of persons solely citizens of the United States--from having their tax money spent on narrow sectarian purposes, although it is clear that very broadly acceptable and relatively minor, symbolic expenditures of a Christian nature were and are perfectly constitutional. It is a protection of individuals, not of minorities per se, it is in fact a ban on state established religions, since the adoption of the 14th amendment.

I should add that I don't especially like the motto, 10 commandments being on monuments, or Congress opening it's sessions with exclusively Christian prayers or paying for ministerial sorts--I just recognize the activity is perfectly constitutional.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Feb 8, 2005 11:52:18 AM

Posted by: miab

LPFabulous: "The establishment clause is rather clearly a protection afforded to the several states by the Constitution."

Is this post a defense of strict constructionism? Where does the establishment clause mention states?

"Congress shall make no law respecting an establishment of religion"

Posted by: miab | Feb 8, 2005 11:52:34 AM

Posted by: oliver

Professor H's point seems merely academic. In calling it intelligible, he seems only to say that the "distance" that one strays in an interpretation of the constitution isn't obvious. So? Whether one wishes to use the metaphor of distance or not, the measurement challenge doesn't mean that some people don't stray more than others or that one isn't entitled to shout abuse at those we think stray to far. All Professor H seems to be saying is we should avoid the word "strict." I suppose he's hoping that anybody who takes this point will realize at the same time that they might be shouting too loud, but people will shout about a choice of wallpaper, and it's not obvious to me that they never have a right to.

Posted by: oliver | Feb 8, 2005 11:59:41 AM

Posted by: oliver

(Not that I didn't find it interesting)

Posted by: oliver | Feb 8, 2005 12:07:19 PM

Posted by: CDC

S. Weasel: Please correct that, umm, less than fully informed post.

Posted by: CDC | Feb 8, 2005 1:34:38 PM

Posted by: CDC

Never mind. I'll get it.

Amendment XIX of the US Constitution:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

1964 Civil Rights Act: http://www.law.cornell.edu/topics/civil_rights.html

And who needs a constitutional democratic republic when we can depend on old lawyers in long black dresses to do a good job of making it up as they go?

Posted by: CDC | Feb 8, 2005 1:56:51 PM

Posted by: CDC

Can someone delete the last two posts? I don't know what I was thinking.

Posted by: CDC | Feb 8, 2005 3:18:07 PM

Posted by: LPFabulous

miab -

It's not a defense of strict constructionism per se. I'm not a strict constructionist and I fully recognize that there are places (like the 9th Amendment) where the framers all but asked for wild judicial activism. But there are also a lot of places (think of freedom of the press and protection from double jeopardy) where there is virtually no controversy about what was intended. I think the establishment clause is one such place. There are a few ways to look at it, and one of them certainly does smack of strict constructionism.

Remember that the Constitution was written in English. So the words in it have English meanings. An alternative reading of the establishment clause is something on the order of "The legislative body of the United States shall not enact laws concerning/with respect to a church recognized by law as the official church of a nation of state." It doesn't say "shall not set up" - it says "shall make no law respecting." Which means it applies not just to new establishments of religion, but pre-existing ones. Now, tell me who had pre-existing establishments of religion in 1789? The states. A majority of them, in fact. The language rather clearly states that the federal government shouldn't be interfering in state religions. Not only that, but this was the rather uncontroversial meaning of the clause at the time. The state-established religions didn't just up and vanish; they lingered on well into the 19th century before they were disestablished legislatively by the states themselves. So the upshot of this view is that it accords with the language of the amendment, it conforms to history, and it makes sense.

In case you're interested, the following URL will take you to sort of a bibliography of "scholarly" types who take this view:


And this one will take you to an article that attempts to flesh out some of this:


Posted by: LPFabulous | Feb 8, 2005 4:28:36 PM

Posted by: Perseus

Herzog is creating a bit of a straw man with his "interpretation" of "strict construction." No strict constructionist would deny the need for judges to interpret certain ambiguous phrases in the Constitution. But like their intellectual father, Madison, they bristle at an ever expanding notion of implied powers that leads to an unlimited federal government, and, as Madison put it, to a Supreme Court "so much in the practice of mingling with their judgments pronounced, comments and reasonings of a scope beyond them." I therefore do not believe that, properly understood, strict construction is "nonsense." (As you rightly point out, strict construction does not necessarily mean "original intent"; Hamilton also believed in original intent in the form of manifest tenor, with an emphasis on tenor.)

And since you asked, allow me to furnish a non-caricatured application of strict construction to the 14th amendment by Professor Michael Zuckert (currently completing a book called "Completing the Constitution: The Post-Civil War Amendments") to demonstrate how the creativity of activist judges has turned an elegantly simple amendment into a behemoth of Constitutional jurisprudence:

Each of the 3 problematic clauses of the first section is directed, as it were, to each branch of the state government. The first prohibits state legislatures from legislating in a manner that "shall abridge the privileges or immunities of citizens of the U.S." Section 5 of the amendment gives the Congress, NOT the Courts, the power to define these privileges and immunities. (Ergo, Brown v. Board is out, but the Civil and Voting Rights Acts of 1964-5 are in.)

The second section forbids state courts to deprive anyone of "life, liberty, and property without due process of law." (The language clearly echoes the 5th Amendment, which is directed at the judicial process.) This means that state courts are prohibited from sentencing any person to be executed, imprisoned, or fined except according the process of law and after a fair trial.

The third is addressed to state executives, who are enjoined from withholding from any person within the jurisdiction of state the protection of the laws. The "affirmative action" required here is that the executive must protect "any person within its jurisdiction" who is being threatened by private parties. Thus "equal protection of the law" does not have any of the additional substantive meanings that the Court has given it.

Now this certainly does not resolve all the interpretational issues of the amendment, but it would certainly help to restore the Court to its proper role in constitutional governance.

Posted by: Perseus | Feb 8, 2005 5:09:59 PM

Posted by: Jay Cline

Sounds like the abortion debate. Where do we draw the line between legitimate interpretation and improper judicial activism.

hmmm...maybe we should take it to the Supreme Court for a ruling?

Posted by: Jay Cline | Feb 8, 2005 5:47:00 PM

Posted by: miab

Re Perseus's analysis of the 14th amendment --

That's all fine, and for the most part not a bad description of the 14th amendment. But it doesn't work in operation without a whole lot of further interpretation (and you've already started that process).

For example: "The first prohibits state legislatures from legislating in a manner that "shall abridge the privileges or immunities of citizens of the U.S."

Where does it say anything about legislatures? Did you "write that in"? Where in section 5 do you see Congress being given the power to "define" these privileges and immunities? Once congress does "define" them (doesn't the constitution itself also create "privileges and immunities"?), who interprets the shape and size of the scope of congress's legislation?

"The second section forbids state courts to deprive anyone of "life, liberty, and property without due process of law." (The language clearly echoes the 5th Amendment, which is directed at the judicial process.) This means that state courts are prohibited from sentencing any person to be executed, imprisoned, or fined except according the process of law and after a fair trial."

So how much process is due? How fair is "fair"? Is just a *little* unfair unfair enough to violate this? What are the consequences of violating this? What makes a trial "fair"? And where does the text say "fair"-- maybe it's talking purely about "processing" through the system? What constitutes "deprivation" of property? of Liberty? And in any case, where do you come by your notion that this applies only to courts? (the actual text: " . . . nor shall any state deprive any person of life, liberty, or property, without due process of law"). Is the word "courts" being "written in" by you? Are you seriously saying that the executive can go around siezing property and killing people so long as it doesn't get courts involved?

Going on:

"The third is addressed to state executives, who are enjoined from withholding from any person within the jurisdiction of state the protection of the laws. The "affirmative action" required here is that the executive must protect "any person within its jurisdiction" who is being threatened by private parties. "

Where did the words "private parties" come in? Where did the words "executives" come in? Why aren't courts bound by this? Why wouldn't this apply to "equal protection" of state contract-bidding laws? Is the legislature bound by this? What categories need to be treated "equally" and in what ways? Does your own interpretation require the executive to allocate police staffing proportionally with population? with crime rates? How does a citizen enforce his right to be "protected" when the executive elects to reduce fire department or police department service solely in black neighborhoods -- is that deprivation of "equal" protection? Can a court order "equal" protection?

There is no such thing as strict constructionism -- you just end up with a different accretion of interpretations and developments, not a smaller one.

Posted by: miab | Feb 8, 2005 6:15:53 PM

Posted by: john t

just pssing a couple of thoughts along for people to chew on or chew up as the case might be. Why is the principle of stare decisis used by the left but originalism or construction derided? If stare decisis adheres to the concept of precedent does not the later two? You have the advantage in the former of picking and choosing,maybe that's it. And for whatever it's worth the 14th amend was passed with the affirmation of the southern states,that is states that were stii members of the CSA,that is not readmitted to the union. Do with that what you please,I'm just passing it on.

Posted by: john t | Feb 8, 2005 10:48:16 PM

Posted by: Perseus

Miab: You are engaging in the same sort of caricature that Herzog does, but I will play along for your amusement.

Notice I said "as it were." More precisely, I would say that each section is primarily directed at one of the three branches of state governments. Take the first section. The exact language is "No State shall make or enforce any LAW," which also includes the other branches, but the existence of such a law is the necessary condition for its enforcement.

As for "privileges and immunities," one must refer to article 4, which uses the same words. It says "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several states," which leaves it to the state constitutions and legislatures to define those privileges and immunities. Now with section 5 of the 14th amendment, the Congress is empowered to enforce and to define US privileges immunities. The power to define them flows from that the facts that the amendment now mentions US citizen privileges and immunities (where they had not been previously), reverses the priority of national and state citizenship, protects US citizens from hostile legislation, and gives the national government new enforcement powers.

As for the meaning of the words life, liberty, and property: deprived of life=capital punishment, deprived of liberty=imprisonment and lesser deprivations (house confinement, community service, etc.), deprived of property=fined or losing title to a piece of property. "Without due process of law" suggests "fair trial" as defined by the 5th amendment since the language is identical (I say "fair" trial as a shorthand to represent the collective requirements of such a trial listed in the amendment). And since the language is identical to the 5th amendment, which deals with the criminal judicial process, the clause is directed primarily at the courts (the executive must also meet certain due process requirements).

"Are you seriously saying that the executive can go around siezing property and killing people so long as it doesn't get courts involved?" No, a state executive may not kill and steal. If it did, it would be violating its equal protection of the laws duty (and due process requirements). I simply assumed that the executive would not do such things--my bad.

Equal protection of the law (police, fire, etc.)-- Thorny issues. I never said that strict construction was a panacea.

Posted by: Perseus | Feb 9, 2005 4:26:55 AM

Posted by: Tom Perkins

Miab, "Where does it say anything about legislatures?" don't be dense.

All authority for the passage of law originates from the people and is granted to the legislature in the state constitution, neither the state courts nor the state executive have any independent authority to decide what the state law is. For your nitpicking there to have any relevance, we would have to presuppose it is the job of the executive or the courts to "construct" the law in the first place.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Feb 9, 2005 7:35:38 AM

Posted by: Daniel

Before the next post arrives that deals with "originalism" one might take a look at Raoul Berger's “Government by Judiciary: The Transformation of the Fourteenth Amendment.”

As to the general topic here, to interpret, or even understand, the Constitution, one must know what the words "mean". Which meaning should I use? Or, rather, whose?

Start with the first amendment: “Congress shall make no law respecting an establishment of religion …” I could ‘interpret’ that to mean that Congress cannot write laws that affect churches or temples because they are “establishments of religion.” That is, I could interpret “establishment” in the same way its used in, say, restaurant signs that state “This establishment is not responsible for lost articles.”

That’s one interpretation, but I doubt anyone would agree that it’s a “good” interpretation. But why not? What makes an interpretation good/true/correct rather than bad etc.? The Supreme Court, in its wisdom, can call the tail of a sheep a leg, but does that mean a sheep really has five legs?

So the question of whether we should “interpret” the Constitution only leads to the question of what we mean by the word 'interpret.' For example (drawn from Berger), assume the Constitution states that 'X is to meet biweekly’ which at that time meant meeting ‘every two weeks’ but now means (let us assume) meeting ‘twice a week.’ Which interpretation is correct? Isn't the better question: are there any rules that guide or limit ‘interpretation’ and, if there are, what are they?

Posted by: Daniel | Feb 9, 2005 11:26:58 AM

Posted by: noahpraetorius@hotmail.com

News flash: a woman in Germany is being threatened with loss of her unemployment benefits for refusing to take work as a prostitute. Don't know what it has to do with this discussion except perhaps it relates to taking reasoning to its logical conclusions.

Posted by: noahpraetorius@hotmail.com | Feb 9, 2005 1:36:42 PM

Posted by: Jay Cline


Prostitution is quasi-legal in Germany, and more or less accepted.


Not saying that is right or wrong, but the moral outrage you may feel about it is hardly applicable.

Posted by: Jay Cline | Feb 9, 2005 1:55:52 PM

Posted by: noahpraetorius@hotmail.com

Not outraged just mytstified that German law could conceivably force a woman (or a man for that matter...if they have brothels for male homosexuals) to work as a prostitute,

Posted by: noahpraetorius@hotmail.com | Feb 9, 2005 2:44:36 PM

Posted by: noah


I have read claims here that the establishment clause meant at the time that the Congress could not pass laws respecting the establishment of religion in the various states. It now means something radically different (doesn't it?). If those claims are true then is this not a good example of what conservatives are complaining about even if rigorously defining that complaint is difficult?

Posted by: noah | Feb 9, 2005 3:55:02 PM

Posted by: noah


One of the earlier posts provided links to articles about a tax activist who alledgedly has proved that the amendment to allow the income tax was improperly adopted.

If that were the case and the Supreme Court acknowledged the fact could it still properly not toss the amendment out?

Posted by: noah | Feb 9, 2005 4:03:33 PM

Posted by: Don Herzog


Yes, the original first amendment's establishment clause is a pure federalism provision: it guarantees that Congress may not interfere with state establishments of religion. Hornbook law says that the guarantee is incorporated against the states with the adoption of the fourteenth amendment. Whether conservatives properly have a complaint or not depends on a whole lot more than those bare facts: I'd need to hear the argument about what was wrong with reading the fourteenth amendment. And any talk of "it's not in the text" is just handwaving, not argument at all. (That's why I'm with miab against Perseus: I don't see any straw men lurking in my post. It's all interpretation. There are better and worse interpretations, for sure. But none of them emerge as better because they simply "apply" what is "in the text." That's nonsense.)

If someone could show an amendment that we long thought was valid was invalid, as a matter of the procedures used to ratify it, could the Court properly not toss it out? Yes, because of sensible worries about justiciability that here would surface as what's called the political questions doctrine. There are some matters that courts properly don't touch because it's hard for them to imagine any principled legal resolution of them that will stick. But if you meant, could the Court continue to affirm the constitutional role of the IRS because, oh, they approved of the income tax as a matter of social policy? well then of course the answer is, no way.

Posted by: Don Herzog | Feb 9, 2005 4:17:33 PM

Posted by: Untenured Republican

I think that the best way to understand "strict construction" is to take it in context. Where the interpretation of a law, a legitimate enactment by a group of people, is concerned, we must *start* with the plain meaning of the text, to the extent that that is discernable, not because words are magic, but because words are public, and words are all we have in the end. How can anyone comply with a law if no one knows what it is? Since every judicial act involves subsumption of some particulars under some concept the words express, there will always be some question in interesting and difficult cases as to whether an analogy holds between the clear cases and the case in question. Where the analogy is not obvious, we can then begin to ask what the words were intended to convey by those who authored and/or approved them. That will require some sort of historical inquiry. The reason why the historical inquiry is needed is because the words represent the people's most recent enactment, and we ask about the ratifiers' intent just as we would ask about the legislature's intent in enacting a statute, even when some time has passed---we have to adopt the useful fiction that when time elapses since an enactment, the will of the authority in question *persists* until we hear otherwise.

For those who were especially interested in establishment, the conservative argument on this is essentially correct: there is no coherent way to take Bingham's intended incorporation of the privileges and immunities of amendments 1-8 and apply them to the states in the case of the Establishment Clause, since there is no "hook" to anyone who has the privilege of not being established *at*. The ban in the Establishment Clause is categorical: Congress cannot, for example, declare that we live in a Christian nation, even if doing so in no way infringes anyone's privileges and immunities. The only coherent view is to say that Free Exercise was meant to be incorporated and Establishment was not, and this is consistent both with what history teaches us about the Reconstruction Republicans' purposes (to ban Black Codes prohibiting freedmen from, for example, religious assembly and practice) as well as the peculiar fact that years later, the Blaine Amendment tried to amend the constitution precisely in order to forbid state establishment, and it failed to be ratified. See Akhil Amar's _Bill of Rights_ and Hamburger's _Separation of Church and State_ for the details. For that matter, see Black's irrefutable dissent in _Griswold_.

Lastly, the Ninth does not license anything interesting at all, since protection of the unenumerated rights it shelters would presumably be left to the states, not the feds. The context of the Bill of Rights is a limit on *federal* power, and the express intent of the Reconstruction Republicans was to incorporate provisions in 1-8 anyway. You might have lots of interesting rights under a state constitution, but that has nothing to do with the feds anyway, and it's not their function to enforce them.

Parenthetically, what lethal weapon was employed to "force" a woman into prostitution supra? Oh, I get it--the extended sense in which we are all forced into doing anything we'd rather not do, for example, getting up in the morning.

Posted by: Untenured Republican | Feb 9, 2005 4:18:39 PM

Posted by: noahpraetorius@hotmail.com

Untenured Republican,

You must be a knuckle dragging primitive if you don't understand that denial of state benefits is "force".


Posted by: noahpraetorius@hotmail.com | Feb 9, 2005 4:37:51 PM

Posted by: noahpraetorius@hotmail.com


Thank you for your reply but you really did not answer my question as to whether the different meaning today of the establishment clause is a valid complaint.

And if it is not then why on earth can't Arnold S. run for president?

Posted by: noahpraetorius@hotmail.com | Feb 9, 2005 4:41:30 PM

Posted by: Don Herzog

Noah, I'm trying to answer, honest. So I'll say it again, a different way: the mere fact that the first amendment had one meaning at one point and has another meaning after the fourteenth amendment isn't yet an objection of any kind, because it's perfectly possible that the fourteenth amendment, on its best interpretation, properly changes the meaning of the first amendment.

Can Arnold run for president right now? Well, I don't see anything in later constitutional language that plausibly amends the original text's language on point. (I'm with Untenured Republican on the crucial importance of text, but in this setting I want to resist his easy slide to ratifiers' intent. Again I'll write about issues that raises soonish.) But maybe you have an interpretation to suggest. Be my guest: all I want to say is, no one in his right mind thinks the Court can just make a "policy choice" about that or "legislate from the bench," still less that they can or should do so on the basis of whether they think Arnold would make a good president. But if that's your worry, it is simply no solution to insist on strict construction.

Thanks to Untenured Republican for an elegant concise statement of the case against incorporating the establishment clause against the states. I always teach Amar's Bill of Rights in my seminar on constitutional interpretation, and I've read Hamburger's book, and I think that view is wrong. But all I want or need to say about it in this thread is: insist on a strict construction of the constitutional language all you want and you can't even begin to sort out the actual issues.

Posted by: Don Herzog | Feb 9, 2005 4:47:14 PM

Posted by: noahpraetorius@hotmail.com

Btw sometimes when I fill in the phantom boxes on the comments form my comments are listed as posted by "noah" other times as "noahpraetorius@hotmail.com"...very weird. So much for the reproducibility of digital procedures!

Posted by: noahpraetorius@hotmail.com | Feb 9, 2005 4:49:45 PM

Posted by: JeffS

OK, so there's no strict construction. But thing is, law professors aren't the only ones who've figured this out. Some judges have, too. What happens when a judge realizes that the language in many cases doesn't "require" an outcome? Judge Posner comes right out and says: we'll be formalist sometimes, inventive at others, whatever leads to the best "consequences." But that's another way of giving up entirely on fidelity to the text as a value in its own right.

Problem is, fidelity to the Cons (whatever that means) is what the citizenship expects of judges, what we've empowered them for: we know enough to want them not to "make stuff up" but haven't studied enough law to know the text is often indeterminate. My problem is: what does a judge do if she believes (correctly!) she's bound by a mandate of fidelity to the Constitution -- indeed her legitimact as a judge depends on it -- but also knows it's impossible to fulfill in the case of most ambiguous legal sources??

Posted by: JeffS | Feb 9, 2005 4:58:00 PM

Posted by: noahpraetorius@hotmail.com


Again thank you for your reply. I always like to operate mentally in the realm of the possible and you seem to as well but constitutional law seems to have a strong aura of adhocracy which distresses many...wouldn't you agree? Even tho I am a conservative I do not advocate wholesale repudiation of precedent (perhaps because I am a conservative!) I guess I wish that the present state could have been achieved by a more transparent process...

Posted by: noahpraetorius@hotmail.com | Feb 9, 2005 5:00:19 PM

Posted by: Don Herzog

Posner's language about judging, when he's off the bench, is the most dramatic example out there of the policy-making judge who legislates from the bench. That the right is still bashing the Warren Court and not bashing Posner for writing this way is another thing that makes me think the fretting about judicial activism is just ideology, not serious jurisprudence. Then again when Posner decides torts cases, sometimes he does a meticulously good job respecting doctrine, and all of his first amendment opinions that I've read are fine. So his bark is worse than his bite, but sometimes there's bite, too.

Still it would be premature to leap to the skeptical conclusion that fidelity to the law is impossible. If you conceive fidelity on the model offered by strict construction, yup, it's impossible. But there are other views out there.

Posted by: Don Herzog | Feb 9, 2005 5:01:34 PM

Posted by: Tom Perkins

Hello Don Herzog, you wrote:

"Yes, the original first amendment's establishment clause is a pure federalism provision: it guarantees that Congress may not interfere with state establishments of religion."

I beg your pardon, but this makes very little sense. Are you saying that absent the first amendment, the federal government COULD establish a religion in the areas where it has original jurisdiction, such as unorganized and organized territories and from Art I Sec 8 "To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;" or did I misunderstand you?

I don't see it as having a function protective of state's rights at all, the clause exists to prevent the federal government from spending money on anything to do with sectarian religious purposes; protecting state established religions was incidental, and it certainly was no longer protective of states rights even incidentally after the 14th amendment.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Feb 9, 2005 5:32:06 PM

Posted by: Don Herzog

No, I wasn't thinking of Congressional authority over territories: you're right, they couldn't act there.

Whether the establishment clause bars spending money on anything to do with sectarian religious purposes raises lots of other difficulties, and I don't think anyone reading this wants me to write a bad hornbook on the relevant doctrine.

Posted by: Don Herzog | Feb 9, 2005 5:49:12 PM

Posted by: noahpraetorius@hotmail.com

I think there is a kernel of the truth about human nature is my exchanges here (however superficial they were) about reports that a German woman might be denied unemployment benefits because she refused employment as a prostitute which is legal in Germany.

There is a huge body of evidence that men and women view the desirability of casual sex in decididely different ways. Men are generally more receptive.

But personally the idea of being paid to have sex is repellent (male here). Isn't it the equivalent of "casual sex plus!" though?

And I think that this reality of human nature (if it is) needs to be taken more in account in the endless debates on abortion (I know...wrong thread). Isn't it an indication that our internal responses have very little ultimately to do with "reason" and thus that reasons' triumphs will always be short lived?

Posted by: noahpraetorius@hotmail.com | Feb 9, 2005 6:21:32 PM

Posted by: Tom Perkins

Don, I certainly don't want you to write a hornbook about it that is well or poorly written--because I don't think from what I've heard that you'll give much weight to the source material ;^)

But seriously, I have no doubts that spending much money on only one religious sect is exactly what they had in mind, because while they (that era of statesmen) did give the Congress fairly plenipotentiary authority over the territories and they did spend federal money on small religious symbols (scripts on buildings, etc), they didn't build any churches that I can think of in the territories of any sect in particular. I don't right now recall when they first paid what denomination of pastor to open Congress with prayer, or have a chaplain available to members, or when they first had a rabbi or priest do it.

What did Congress provide to the Army and Navy in regards to chaplains and chapels in the early days of the republic? And would this have bearing on the issue.

Yours, TDP, ml, msl, & pfpp

PS. Will you broach the second amendment definitively before or after the Supreme Court does?

Posted by: Tom Perkins | Feb 9, 2005 6:40:23 PM

Posted by: Perseus

As a member of the Right who is critical of policy-making judges, I would tell Judge Posner that if he doesn't want to be A POTTED PLANT, then he should find a new line of work.

Posted by: Perseus | Feb 9, 2005 7:06:51 PM

Posted by: Perseus

I would also ask Don Herzog what he thinks of people like Ronald Dworkin, who explicitly argues for "a fusion of constitutional law and moral theory." In this view, judges interpret the Constitution in light of their particular interpretations of morality, which is an open invitation to judicial activism.

Posted by: Perseus | Feb 9, 2005 8:14:10 PM

Posted by: john t

as to the establisment clause;considering it was the states who ratified the constitution,that is they made it,and considering it as the states who fought for the bill of rights,incl, 1st amend,I'll go out on a limb and say the establisment clause pertained to the states. Further,I'm not aware,but I'm open to being so, of any intent,or post 14th decision that would imply a establisment reading congruent with incorporation, that is until the Everson case which to the best of my knowledge opened the door. If I may clarify the statement about pertaining to the states,that is it restricted the fed gov't and left leeway to the states.

Posted by: john t | Feb 9, 2005 11:18:27 PM

Posted by: Alex F

Noah, please don't report that story as true. It's not.


Posted by: Alex F | Feb 10, 2005 9:18:30 AM

Posted by: D.A. Ridgely

Someone commented that much of this thread resembles the abortion thread. That may have been intended as a joke, but he’s right. The problem with talk about “distance” from “original intent” or “strict construction” isn’t that it is an unintelligible metaphor, it is simply that it is a metaphor. So, too, “original intent” and “strict construction” sound like rigorously reasoned theories of appropriate judicial behavior, but when Mr. Herzog or anyone else troubles to unpack them, it turns out they get fuzzier and fuzzier and less and less useful in actual application because, lo and behold, they are only (metaphorically speaking) “metaphors.”

This shouldn’t really surprise us for several reasons. The most important of these reasons is (rather like Nixon once saying but not really believing “We’re all Keynsians now.") we’re all Legal Realists now. Some of us have evolved from good old-fashioned Karl Llewellyn style LR to the heady incoherence of Foucault style Critical Studies LR, while others like Posner have largely abandoned talk of the law, per se, for what they rather fondly hope might be the greater objectivity of economic efficiency LR, etc., but it boils down to the same sort of linguistic and rule skepticism. And where, pray tell, does that come from? Hint: Where do we get our judges and justices, and who trains or educates them?

I don’t mean to suggest this is entirely wrongheaded or that Mr. Herzog’s observations are symptomatic of an underlying problem that needs correcting. What I think it needs is candid acknowledgment along with an acknowledgment (which should be mandatory on fairly short and regular intervals) that Acton is always and forever right about people and power.

Finally, just because something posing as a theory turns out on very close examination to be a sort of incoherent nonsense doesn’t mean it isn’t important nonsense. I think what the “strict constructionist” and “original intent” folks are trying to urge is both important and “correct,” even though they turn out not to be providing very handy yardsticks by which judges can confidently “measure” the “distance” of their “interpretations” from the “real meaning” of the “law.”

Posted by: D.A. Ridgely | Feb 10, 2005 10:19:16 AM

Posted by: oliver

Metaphors often dominate reasoning unconsciously. Not only do we need to constantly remind ourselves they're "just" metaphors, we need to be careful what metaphors we allow to sit down in our living rooms at all.

Posted by: oliver | Feb 10, 2005 12:06:50 PM

Posted by: john t

D A Ridgely, Fuzzier and fuzzier? Unpack them? Unpack a suitcase and what do you have,an empty suitcase! That's a metaphor. Can you not if you wish march thru the whole body of law and keep repeating "it just ain't so". The constitution is an operating document,that is it is meant to establish procedure. The bill of rights is a protective set of legal devices against fed encroachments,any dispute there? Of course it has been changed,intrepreted,and sometimes mangled. But if you can agee to the two points above,in general,then you,or anybody has taken a small step towards originalism etc. Mr. Herzog says concerning Posner"does a meticulously good job respecting doctrine". What doctrine,and is it a metaphor,or unintelligble? You can bet your ass it isn't. But you can also bet,and win,that it's a doctrine that Mr Herzog likes. Earlier I had asked in one of my typically ignored posts,why do liberals use and refer to the concept of stare decisis but deride originalism. I suggested that they prefer the former because it offers them a range of choices. But the former is founded on precedent,you know ,like originalism.

Posted by: john t | Feb 10, 2005 1:41:28 PM

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