Letter: To NPR, re. "Strict Constructionism"

A friend of mine forwarded this note to NPR, with permission for me to publish it:

Just listening to David Wellna's story on the Miers nomination.

We heard a clip of Sen. Jeff Sessions saying that Miers understands that the courts are bound by the law, just as the executive and the legislative are.

Then David Wellna said, "That sort of deference to the constitution is called 'strict constructionism.'"

Wellna thereby adopted and promoted the chief PR talking point of the right wing: The alternative to Bork/Scalia/Thomas is a judge who doesn't care about the law, but who just decides according to his personal beliefs about the underlying issue. If the judge likes abortion, he'll say there's a constitutional right to it, without regard to the law.

Wellna apparently doesn't know understand the debate. *Every* judge, *every* "judicial philosophy" believes that judges are bound by the law. The disagreement is over how a judge decides what the law means. Many laws -- particularly many constitutional provisions -- are general, vague, ambiguous, and open to widely varying reasonable interpretations. Strict constructionists say they look to the original public meaning of the texts. So, for instance, they read about what five or ten men took the phrase "equal protection of the law" to mean when the 14th Amendment was passed more than a century ago. It is fair to say that "strict constructionists" defer both to the text of the constitution and to the judge's understanding of what was widely believed in 1868 -- not a very reliable kind of guesswork.

Other schools of thought hold that the meaning of the grand generalities like "equal protection of the law" should take their specific meaning from the evolving understanding of the society of what, in this case, "equality" or "equal protection" means. Many people think that the authors of the Constitution understood and intended that the grand generalities would be interpreted and applied in this way. We think this approach to the Constitution is not only more democratic -- easing the counter-majoritarian problem of a fundamental social compact that is all but unalterable by the society currently working under it -- but also more faithful to the very idea of a fundamental social compact and to the intention of the Founders. It is fair to say that "strict constructionists" defer both to the text of the constitution and to the judge's understanding of what was widely believed today -- a kind of guesswork, to be sure, but more reliable than the alternative. (

If Mr. Wellna is to report this issue, he should learn more about it than can be gleaned from op-eds written by right-wing agitators.