Conservative, Strict-constructionist Judiciary

As noted in my earlier post of November 10 I noted that in America the far political right holds that government has a narrow role to play in society. As part of their argument they frequently speak out about the need to eliminate “judicial activism”, that is, the courts by their ruling expanding civil liberties. They heatedly argue for a strict understanding of the Constitution and the Bill of Rights, not within an evolving civil context but within the original setting. They hold that it is a travesty to read into the Constitution and the Bill of Rights issues not envisioned or addressed by the Founding Fathers.

Until recently have been somewhat perplexed by the strength of this narrow understanding of the role of the judiciary within the religious right who like Dr. Dobson openly call for the President and Congress to appointment “conservative, strict-constructionist judges.” They want judges who will strike down rulings laws that expand civil liberties, impact personal and corporate property and trade rights that are not in keeping with what the Founding Fathers envisioned. Three issues drive their viewpoint,
1. Abortion
2. Gay rights and marriage
3. Broadening of the definition of the separation of Church and State which has led to the removal of the Lords’ Prayer and prayer in general from schools and the public square.

In all three areas the courts issued created rulings that permitted abortion, accepted the gay lifestyle that citizens are free to pursue rather than imprisoned as sexual perverts, and recognized the rights the validity of non-Christian faiths without being confronted daily in government settings by government sanctioned Christian worship and expression.

Many evangelical and fundamentalist Christians would freely nod in agreement that the courts have been prime movers in these areas. Hence, their stand against judicial activism makes sense, at least within a narrow context of just these issues over recent decades.

Their position puts the conservative strict-constitutionalist in a position of affirming that the courts were:
1. Correct in upholding the Dred Scott ruling and that slavery is an acceptable practice.
2. Wrong is upholding and expanding child labor laws.
3. Wrong is upholding minimum wage laws that helped to break the cycle of indentured servitude to their employers.
4. Wrong in its rulings such as Brown vs. the Board of education that integrated public schools.
5. Wrong in ruling after ruling of civil rights cases that eliminated segregation
6. Wrong in helping to define and uphold truancy laws.
7. Wrong in issuing rulings that eliminated laws that institutionalized the mentally handicapped.
8. Wrong in issuing rulings that allowed the mentally and physically handicapped to attend the same public schools as their neighbors rather than “special schools.”
9. Wrong in invalidating legal contracts with children that were not signed by the parents.
10. Wrong in granting Miranda Rights (the right to remain silent and be interrogated only with one’s lawyer present).
11. Wrong in allowing those who appear before the court to have a translator when they do not speak English.
12. Wrong in addressing in firm terms lynching and other forms of rush to judgments by the public.
13. Wrong in defining due processes that we now all value as part of our judicial system.
14. Wrong in defining slander and issuing other statements that affect the public safety of others, such as screaming “fire” in a crowded theatre, as not protected free speech.

A host of other issues could be added to above list. While the modern strict-constructionist would distance himself/herself from issues on the list, by the very nature of their static view of justice, they are against each of the civil rights issues in the above list. If one is a strict-constructionist, one cannot pick and choose what rulings are judicial activist rulings were appropriate or not appropriate.

Even though the courts may issues rulings with which I do not agree, I am pleased that our judicial system recognizes that society progresses and evolves, and the laws need to be understood afresh within that changing context. Though we hold our Founding Fathers in respect, a dynamic view of the judiciary recognizes that their views and writings are not divine writ. They may have been insightful, but they did not envision our contemporary society with its plethora of issues, nor are their views without flaws that subsequent generations have had to address.

I am pleased with a dynamic posture of the judiciary for a fixed view of the Constitution and Bill of Rights is not justice. A static posture is blind legalism which as the decades pass creates an unjust judicial system that lacks wisdom.