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Strictly Speaking, What's the Essence of Judicial Label?

When President Bush nominated John Roberts to the U.S. Supreme Court, he announced John Roberts to be a strict constructionist. The phrase, "strict constructionist" means implementing the precise words of the Constitution in regard to the original intent of the Founders. Anything other than that is judicial activism and legislating, so court critics say.

The president cited Dred Scott v. Sandford (1857) as the antithesis of strict construction when he said, "The Dred Scott case 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 . . . and so, I would pick people for the United States Supreme Court that would be strict constructionists."

To the contrary, Dred Scott v. Sandford, rather than an example of judicial activism, is a dead ringer for strict construction. In that case, Chief Justice Roger B. Taney declared no state or territory could constitutionally prohibit slavery without contravening the meaning and original intent of the Constitution.

Justice Taney cited provisions directly dealing with slavery. Article I, Section 9, prohibits Congress from interfering with the importation of slaves before 1808. Article IV, Section 2, requires states to return escaped slaves to their owners. Although not mentioned by Taney, Article I, Section 2, provided a slave should be counted as three-fifths of a person in apportioning state representation in the House of Representatives.

These three provisions sanctioning slavery led Taney to the conclusion slavery was clearly contemplated in the Constitution, and neither Congress, nor states, nor territories could legally prohibit slavery without violating the supreme law of the land.

The Dred Scott decision convulsed our nation to a level only war could resolve. Not only does Taney win the prize when it comes to strict construction, he wins first place when it comes to original intent of the Founders as a measuring rod to interpret the Constitution.

Taney anticipated the inevitable outcry and defended his decision when he wrote, "It is not the providence 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."

Taney also reminded his critics that "if any of its provisions (Constitution) are deemed unjust, there is a mode prescribed in the instrument itself to which it may be amended, but while it remains unaltered, it must be construed now as it was understood at the time of its adoption."

Taney was telling America the Constitution says what it says, and if we don't like it, amend it. In fact, it was amended after the Civil War with the 13th Amendment, which abolished slavery, and the 14th Amendment, which gave us the "due process of law" and "equal protection of the laws" clauses.

In contrast to the strict construction approach preferred by Bush is the case of Brown v. Board of Education (1954) which declared racially segregated schools a violation of "the equal protection of the laws" clause of the 14th Amendment. Yet, some constitutional theorists attack Brown v. Board of Education as judicial activism, the very thing President Bush rejects.

Indeed, it is accurate to say the court grafted into the 14th Amendment its unanimous opinion that segregated schools were inherently unequal. Chief Justice Earl Warren, who wrote the opinion, admitted it was not possible to decide whether the authors of the 14th Amendment intended to ban segregation.

Similarly to Dred Scott, Brown caused a tumult. "Impeach Chief Justice Earl Warren" signs dotted the highways and landscapes throughout the land, especially in the south. Yet Brown v. Board of Education is so irreversibly entrenched in our ethos, one wonders why it took so long to get there.

Since there are no specific provisions in the Constitution dealing with segregation, Brown v. Board of Education is a prime example of judicial activism at its zenith. Likewise, the right to remain silent when arrested, the right to counsel as prerequisite to a fair trial, as well as racial integration in public places, are all examples of judicial activism grafted into the First, Fifth, and 14th Amendments.

Ironically, the term strict construction is an oxymoron. When the wording in the Constitution is specific, such as Congress has the power to coin money or establish post offices, there is no need for construction. On the other hand, if the phrase being studied is a general platitude like "equal protection of the laws," then it cannot be strictly construed by the wording itself and must depend upon the court to define the parameters of that phrase.

John Roberts has said everything he can say to assure America that he will be a conscientious justice. He has said his personal ideas will not influence his decision- making. He obviously agrees with John Marshall, who declared in Marbury v. Madison (1803) that it is the exclusive function of the Court, "to say what the law is." Although John Roberts may use a conservative approach, he can be no more a strict constructionist than any justice mandated to "say what the law is."

We can ask nothing further of the gentleman, nor expect a better appointment from this conservative president. If I were a member of the Senate, I would unhesitatingly vote to confirm him.

From:
My Word
By Russell Troutman
The Orlando Sentinel
Thursday May 25, 2005