Why so strict?

[Mickey]

A strict construction, ie narrow interpretation, of the constitution is spoken of by the right almost as if it were a self proving truth. The Republican Party Web site says of President Bush's agenda: "President Bush will continue to appoint to the Federal courts well-qualified judges who share his commitment to strictly interpret the law." Bush Agenda. I think "strictly interpret" was chosen as it played better in front of focus groups than "narrowly interpret".

 

In any event, I hear this from the right repeated as a mantra, a mystic chant that seems to invoke reverence and awe from among them. I don't usually howeve hear them explain why it is they think that is a good thing.

 

Remember that the Constitution in large part tells us what rights we as individuals have that can't be taken away or infirnged upon unduly by the government. It is a set of rights which in sum make up this abstract thing we so reverentially speak of called "freedom". When we talk about "American Freedom" we are talking about the rights granted to us by the Constitution.

 

Why does the right want our freedoms to be narrowly interpreted? Why is it that they assume without explanation that it is a good thing, so good it is accepted at face value, to limit as much as possible, ie strictly interpret, the breadth of our freedoms? If we are to err in interpreting the Constitution, should we not err on the side of more freedom, not less? Was the legacy of our founding fathers meant to be so cheap, so paltry, that any expansion would be a crime against a frugal grant of rights so limited so as to barely exist? Did Jefferson, Washington, Franklin, Madison and Hamilton mean to bequeath us a miserly set of limited rights never to be expanded beyond the most literal and limited interpretation of their words?

 

Why are so many so willing to cheapen such a rich inheritance?

[Mickey]

>crickets<

[Terry Tate]

A strict construction, ie narrow interpretation, of the constitution...

 

I think "strictly interpret" was chosen as it played better in front of focus groups than "narrowly interpret"...

 

Remember that the Constitution in large part tells us what rights we as individuals have that can't be taken away or infirnged upon unduly by the government...

 

Why does the right want our freedoms to be narrowly interpreted? ...

 

to limit as much as possible, ie strictly interpret, the breadth of our freedoms?

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Perhaps "strictly interpret" was chosen because it has a different meaning than "narrowly interpret." You change strictly to narrowly, then defined it further as "to limit as much as possible". I don't find that definition anywhere. I don't read the same context into it as you do. With a premise built on that, perhaps it's difficult to find someone who will debate your question of why conservatives wish to take away our freedoms. Just a guess.

[e.e.]

The purpose of the constitution was to protect our rights by limiting the powers of the federal government to a very specific set of duties, in the main because the founders believed that the greatest threat to liberty was an unrestrained federal apparatus. A narrow interpretation of the constitution protects us from that threat. The Bill of Rights, passed later, and subsequent amendments, by definition protect specific rights from the federal government only, and as such must be interpreted strictly.

 

I believe your interpretation of the purpose of the constitution, focusing too narrowly on the Bill of Rights, is incorrect. Specifically, the constitution was intended to spell out the precise and narrow limits of federal power, which is what truly protects individual rights.

[boomerjamhead]

>crickets<

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Not enough attention this weekend?

[Mickey]

Perhaps "strictly interpret" was chosen because it has a different meaning than "narrowly interpret." You change strictly to narrowly, then defined it further as "to limit as much as possible". I don't find that definition anywhere. I don't read the same context into it as you do. With a premise built on that, perhaps it's difficult to find someone who will debate your question of why conservatives wish to take away our freedoms. Just a guess.

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"Strict construction" is a legal concept well known and used in construing documents from contracts to constitutions. It means to stick to the exact words and go no further. There are times when the law favors a broad interpretation of words in documents and times when it favors a narrow interpretation. "Broad" is considered the opposite of "strict". I am on firm legal ground here that a "strict construction" is the same as a narrow interpretation or construction. If by using the term "strict" the President actually meant the opposite of the widely known and accepted definition of the term supported by a couple hundred years of legal precedent, he might have made that clear.

 

Statutes for example are often passed to create an exception to common law. In NY for example, you can't get damages for the economic losses, ie lost wages, of the deceased in a wrongful death case under common law. To correct this problem, the legislature passed a wrongful death statute providing for an award of lost wages to the heirs of the deceased who depended on the financial support of the deceased. The right to those damages did not exist at common law, it was a new right carved out by the legislators. As such, the statute was said to be "in derogation of common law" and therefore was "to be strictly construed". That simply meant that only the economic losses mentioned spefically in the statute were recoverable, the courts couldn't read into the statute additional econmic losses even though they would be in the spirit of the law though not the letter. "Strict" and "narrow" are interchangeable when it comes to rules of construction, of interpreting the law.

 

Sometimes the law favors a broad construction of a statute. In NY, we have a scoffolding act that makes owners and contractors responsible to provide a safe place to work especially when the work is being performed at a height. Because of the public policy goals of the legislature in passing this act and the danger that its very purpose would be lost if it were too narrowly construed, the rule of construction for the scaffolding act is that it should be construed broadly.

 

I see no reason for the individual rights guaranteed in the Constitution and the Bill of Rights to be strictly or narrowly construed. Quite the opposite. I think the rule of construction should be that those rights should be broadly construed. That is what leads to more freedom, not less.

 

Every law dictionary I could find backs me up on this, that "strict" construction and "narrow" construction are the same thing. If the President is for a broad construction of individual rights and a narrow construction of other parts, he should make that clear. My belief is that "strict construction" is a catch phrase that garners lots of applause from those who can't be bothered with an issue that is far too complex to be so simply stated.

 

When it comes down to it, I think the right favors whatever reasoning will result in the laws and policies they favor passing constitutional muster. If that means a narrow interpretation of the right to privacy, so be it. If that means a broad interpretation of the second amendment, so be it. It is politics dressed up as principle.

[Mickey]

The purpose of the constitution was to protect our rights by limiting the powers of the federal government to a very specific set of duties, in the main because the founders believed that the greatest threat to liberty was an unrestrained federal apparatus.  A narrow interpretation of the constitution protects us from that threat.  The Bill of Rights, passed later, and subsequent amendments, by definition protect specific rights from the federal government only, and as such must be interpreted strictly. 

 

I believe your interpretation of the purpose of the constitution, focusing too narrowly on the Bill of Rights, is incorrect.  Specifically, the constitution was intended to spell out the precise and narrow limits of federal power, which is what truly protects individual rights.

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The Bill of Rights are actually amendments to the Constitution so when the President says he wants to strictly interpret the Constitution, that includes individual rights. If he meant to broadly construe part of the document and narrowly construe others, he could have said that. He didn't. I am simply taking him at his word.

 

You will have to explain to me how a broad interpretation of, for example, the freedom of speech, would be a "threat to liberty"? It would seem to me that a broad interpretation of the freedom of speech would protect us against an "unrestrained" government whereas a narrow interpretation of the scope of that freedom would expand the government's power to limit our speech and consequently our freedoms.

 

Should judges broadly or narrowly construe the individual rights found in the Constitution?

[Terry Tate]

"Strict construction" is a legal concept well known and used in construing documents from contracts to constitutions.  It means to stick to the exact words and go no further. 

 

When it comes down to it, I think the right favors whatever reasoning will result in the laws and policies they favor passing constitutional muster.  If that means a narrow interpretation of the right to privacy, so be it.  If that means a broad interpretation of the second amendment, so be it.  It is politics dressed up as principle.

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Strict = narrow = bad - got it.

 

Broad interpretation = right to abort babies = good.

 

Glad we have a lawyer to explain it to us.

[Mickey]

Strict = narrow = bad - got it.

 

Broad interpretation = right to abort babies = good.

 

Glad we have a lawyer to explain it to us.

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Brilliant analysis. You are, however, pretty much proving the point that it isn't principle, it is the result that matters. Any analysis or rule of construction that permits abortion is no good. Any analysis or rule of construction that creates a second amendment right without limit is okay. If that means a narrow construction for one right, good. If that means a broad interpretation of another, no problem.

 

I'll ask again, should Judges narrowly construe the individual rights found in the Constitution? It is a simple question.

[ExiledInIllinois]

Brilliant analysis.  You are, however, pretty much proving the point that it isn't principle, it is the result that matters.  Any analysis or rule of construction that permits abortion is no good.  Any analysis or rule of construction that creates a second amendment right without limit is okay.  If that means a narrow construction for one right, good.  If that means a broad interpretation of another, no problem. 

 

I'll ask again, should Judges narrowly construe the individual rights found in the Constitution?  It is a simple question.

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I for one say NO.

 

But, lets hear from the boards strict constructionists out there...

[CookieG]

The purpose of the constitution was to protect our rights by limiting the powers of the federal government to a very specific set of duties, in the main because the founders believed that the greatest threat to liberty was an unrestrained federal apparatus.  A narrow interpretation of the constitution protects us from that threat.  The Bill of Rights, passed later, and subsequent amendments, by definition protect specific rights from the federal government only, and as such must be interpreted strictly. 

 

I believe your interpretation of the purpose of the constitution, focusing too narrowly on the Bill of Rights, is incorrect.  Specifically, the constitution was intended to spell out the precise and narrow limits of federal power, which is what truly protects individual rights.

118049[/snapback]

 

It might have been true that the Bill of Rights at one time protected the individual from abuses by the Federal government only, the 14th Amendment changed things. With its due process clause and especially its equal protection clause, the protections afforded the individual against the federal government were then applied against state intrusions.

 

Additionally, when you say, that the constitution was intended to spell out the precise and narrow limits of federal power, I only agree to a certain extent. There are a number of clauses contained in the Constitutiion and its amendments that are inherently vague. Prime examples are the ability of Congress to "regluate commerce among the States", "unreasonable searches and seizures", "due process of law" and even "equal protection of law" None of these clauses are precise, perhaps intentionally so. An argument that these clauses should be strictly construed begs the question...why? The founding fathers, as well as any subsequent Congress could have further defined these vague clauses through constitutional amendment but have not done so.

 

Thus, they must be judicially defined, and that definition may change or may be applied differently over time as circumstances may require. For instance, as bright as our founding fathers were, do you think they could have envisioned a world with super secret electronic eavesdropping. As such, a definition of what constitutes an "unreasonable search and seizure" may necessarily be changed, or at least revisited.

[UConn James]

It  might have been true that the Bill of Rights at one time protected the individual from abuses by the Federal government only, the 14th Amendment changed things. With its due process clause and especially its equal protection clause, the protections afforded the individual against the federal government were then applied against state intrusions. 

 

  Additionally, when you say, that the constitution was intended to spell out the precise and narrow limits of federal power, I only agree to a certain extent.  There are a number of clauses contained in the Constitutiion and its amendments that are inherently vague.  Prime examples are the ability of Congress to "regluate commerce among the States", "unreasonable searches and seizures", "due process of law" and even "equal protection of law" None of these clauses are precise, perhaps intentionally so.  An argument that these clauses should be strictly construed begs the question...why?  The founding fathers, as well as any subsequent Congress could have further defined these vague clauses through constitutional amendment but have not done so. 

 

Thus, they must be judicially defined, and that definition may change or may be applied differently over time as circumstances may require.  For instance, as bright as our founding fathers were, do you think they could have envisioned a world with super secret electronic eavesdropping.  As such, a definition of what constitutes an "unreasonable search and seizure" may necessarily be changed, or at least revisited.

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Those Framers. Pretty smart guys they were.

 

For those wanting a strict/narrow interpretation, they refer to the actual paper document and what its words state. For those so-called activists, they make reference that the Constitution is a living document.

 

If you would please look up the definition, and usage, back at the time (as anyone reading Thomas Hardy would know 30 times per page) "constitution" jointly refers to the "the physical makeup of the individual". 290M people constitute this great nation. The face of America changes each day, and it most certainly is not the same face as 1787. The vagueness inherent in the Constitution was so it could be applied over time in broad scope for the people it would come to unite.

 

The Framers provided the foundation and walls, but this house has a thatched roof.

[Terry Tate]

Brilliant analysis.  You are, however, pretty much proving the point that it isn't principle, it is the result that matters.  Any analysis or rule of construction that permits abortion is no good.  Any analysis or rule of construction that creates a second amendment right without limit is okay.  If that means a narrow construction for one right, good.  If that means a broad interpretation of another, no problem. 

 

I'll ask again, should Judges narrowly construe the individual rights found in the Constitution?  It is a simple question.

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Thanks for the complement. I think I summarized your principled position pretty well.

 

You are no doubt aware there are lawyers that are pro-choice that feel the right to privacy decision was in error. Just thought I'd mention that for those who haven't come across that before, less they think that all pro-choice lawyers are of the same mind on that particular decision.

 

The bottom line for me is a simple answer to your question is wrong, either way you answer it.