by Samuel Hockenbury

University of Massachusetts Amherst


There is no such thing as strict constructionism. Despite the popular belief, such a judicial practice does not nor could not exist.  The notion persists because it is easy to latch onto if only because we say we want our judges to have an impartial adherence to the law.  People crave the impartial arbiter in all manners and walks of life. We are obsessed with fairness and preserving the sanctity of our ideals.  

Before getting into Supreme Court Justices let me use a metaphor that will likely stir up slightly less emotional attitudes about what I am suggesting.

In sports we obsess over fairness and impartial and perfect play calling.  We get worked up over missed calls, or calls that seem to violate the rules.  However, we also get frustrated with the rules.  Let’s talk about what constitutes a catch in football.  A player must have control of the ball and complete a football move with both feet in bounds or go to the ground in bounds with full control of the ball.  This sounds like a reasonable description and yet with such strict adherence to this rule, sometimes something that just simply passes the eye test as a catch is not according to the rules.  Ask Calvin Johnson or Dez Bryant.  That is because language is interpretive.  Yes; a good strong rule on what a catch is will enforce some level of uniformity in what calls on the field get made, but sometimes it also bungles what seems like a fairly simply task.  Why? Well in the case of trying to catch the ball in football, any number of things can happen in any number of ways, and to account for all types of catches given all types of potential circumstances, rules can become vague.  

There is also a problem with anything written by committee.  A singular author, while still open to the potential of being misinterpreted, had a singular point of view when writing and uses language that supports this mind set.  A second person automatically presents a different view point.  It may be subtle, or it may be based purely on the grammar and structure of what is being written, and now this piece of writing is open to varying interpretations based strictly on that the authors are not in truly perfect harmony.  Therefore, something simple like what constitutes a catch is open for wide interpretation.  What is a football move? What does control of the ball look like? Were they forced out and thus should receive the credit of the catch, or were they going to land out of bounds anyway?  

In a related part of the game that also carries a lot of heat, the pass interference penalty.  When pass interference is called, the ball must be deemed catch-able for the penalty to be drawn.  But what is a catch-able pass? By who’s standards? These are vague notions that require interpretation.  And already the simple letter of the law is no longer all you can rely on.

This is where the notion of original intent comes into play.  Let us take the first amendment, just about everyone’s favorite amendment.  Here is the text of the 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."

No law respecting an establishment of religion, i.e. the separation of church and state.  What did they mean by that? Did it mean freedom to practice all of your religious beliefs? Does it mean churches may go un-taxed? Does it simply mean we cannot formally endorse one type of religious practice over another?  There are many questions here, and when 55 men worked on the original document this part was not in there.  The House, the Senate, the 13 state legislatures all had to agree upon this language, and contrary to popular history, the founders did not all agree unanimously on everything.  We speak of them as a collective hive mind, when we also know Hamilton and Jefferson did not agree on whether a national bank is constitutionally allowed.  Hamilton helped write it, and Jefferson’s right hand man Madison is considered the father of the document, and they couldn’t agree on what it meant.  What I’m getting at is the law is vague and open to interpretation.

Another example, Chief Justice John Marshall was the THIRD Chief Justice of the Supreme Court, and in the Case Marbury v. Madison, he declared the Court’s right to judicial review.  This was the first time someone had done this.  12 years under the constitution, 2 different administrations and it was only then did this power come.  This was an interpretation not necessarily originally intended, Marshall decided it was.

It is why there is an emerging consensus against mandatory minimums.  Judges lost the ability to interpret a situation, and administer proportional justice to the specifics of the crime.  They must act within the law, and certainly cannot write new laws but if they base the decision in law then they did their job.  If a judge goes into a case without knowledge of its details with a predetermined judgement, that is not appropriate.  But if a judge can look at the case, look at the laws this country has, and the legal precedents in place, they can make a decision that does change the way a law works.

Chief Justice Taney in the most infamous legal decisions ever stated:


"In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument."

He used this notion of original intent and strict adherence to the words in the constitution to make what is now considered a decision that helped spark the Civil War, and is now considered a blight on the history of our nation.  It may be fair to say had he gone the other way, the south would still have bolted, given the tension in the country was so tight any decision was going to make things snap.  But, in the dissent by senior dissenting justice McLean he argued there is no basis for Taney to suggest blacks could not be citizens.  In five of the 13 states at the time of ratification blacks could vote and if they could do that, they were citizens of their state and therefore also a U.S. citizen.  McLean used the law to express an entirely different viewpoint and one that would have been labeled activist by today’s rhetoric.

The political views and temperaments of our justices matter.  Their respect for the law matters.  But do not suggest that there are judges who are perfectly impartial and strictly adhere to the letter of the law, because the law is vague.  It is made of words, and words compiled together of different human beings, will create vagueness.  And when things are vague, someone must fill in the gap.  They cannot do so baselessly, but what they decide is relevant to filling that gap is up to them and that is politics.


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