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October 03, 2005

a ritual stupidity

Don Herzog: October 3, 2005

From President Bush's statement this morning, nominating Harriet Miers to the Court:

Harriet Miers will strictly interpret our Constitution and laws.  She will not legislate from the bench.

Sigh.  The cynic in me, of late a cancerously expansive presence, says, "calm down, Don, this is a barely coded statement to the right that she doesn't approve of abortion or gay marriage."  But this familiar contrast is not supposed to mean that.  It is supposed to give a reason, to explain why "conservative" judges are doing their jobs and "liberal" judges are usurping policy-making decisions that properly belong to the legislature.

Alas it's impossible to take that seriously.

The usual target in this discussion is Griswold v Connecticut (1965), where the Court announced a right of privacy in striking down a statute banning the use of contraceptives.  But where "in the Constitution," as critics like to ask, or leer, does it say anything about the right of privacy?  Justice Douglas's language for the majority is much mocked; he referred to

specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

Penumbras and emanations?!  Let all the merry conservative skeptics chime in:  ha ha ha.  Legislation from the bench!  And that right to privacy helped anchor the Court's decision in Roe, which appealed to Griswold and other precedents.

Okay, so what about Boy Scouts of America v Dale?  That case held that it was unconstitutional for the state of New Jersey to bring a public accommodations antidiscrimination statute to bear against the Boy Scouts:  if the Scouts wanted to get rid of an assistant scoutmaster for being gay, that was within their rights.  Somehow Chief Justice Rehnquist's language for the majority isn't mocked:

This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association.  We hold that it does.

True, he didn't talk about emanations or penumbras.  But he might as well have.  Where oh where "in the Constitution" does it say anything about freedom of association?  In case you haven't dutifully committed the text to memory, here's 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.

So freedom of association isn't there!  Rehnquist made it up!  But I have yet to find a single right-wing commentator denounce Dale, and believe me, I've looked.  It's hard to resist the inference that the alleged jurisprudential contrast between strict construction and legislation from the bench is nothing but a mask for illicit policy concerns.  Whether an opinion is called strict construction or legislation from the bench seems to depend solely on whether the commentator likes the outcome.  That game is too dreary and, frankly, too stupid to be worth playing.

It doesn't yet follow that there is no principled jurisprudential contrast to be drawn here.  But is there one?  Article I, sec. 8 of the Constitution enumerates Congress's powers; clauses 11-16 lay out war powers.  We learn that Congress can establish an army and a navy.  But there's nary a syllable "in the Constitution" about the air force!

I can't imagine anyone actually wants to bite that bullet.  And yes, I can draw distinctions between Roe, Dale, and Congress's setting up and funding the air force.  But those distinctions are not the bozo distinction between what's "in" the Constitution and what's "invented."  On and off the bench, when it comes to constitutional law, interpretation is the only game in town.  The contrast that matters is that between good and bad interpretations, not between people who "faithfully apply the letter of the Constitution" and those who "make stuff up."

Next time you hear someone pounding the table about Griswold and Roe as instances of legislation from the bench, ask him about Dale.  Next time — at confirmation hearings or on the campaign trail — you hear our elected politicians carrying on about strict construction, don't let them sucker you into believing it.  After all, I'd hate to believe that they are so stupidly ideological that they've suckered themselves.

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