Carol Platt Liebau

Saturday, November 13, 2004

This piece in The New York Times seems to suggest, rather crudely, that the judicial doctrine of "strict constructionism" is nothing more than a theory that has been made up to justify the efforts of pro-life jurists to overturn Roe v. Wade.

That's wrong. "Strict constructionism" is, in a sense, best defined by what it is NOT -- judicial activism that substitutes the political or policy preferences of judges for analysis that is grounded in the actual text of the Constitution. Need an example of the antithesis of strict constructionism? It's the decision handed down by the Supreme Judicial Court of Massachusetts, which found a hitherto undiscovered right to homosexual marriage in the state Constitution -- which was drafted in 1787.

To the extent that anyone would deem Roe v. Wade in any danger from those who believe in the doctrine of "strict construction," that may be because the right to abortion found by the Roe Court isn't, of course, set forth specifically anywhere in the Constitution. Instead, the Court found a shifting right to abortion (depending on the trimester) was located in the "penumbra formed by emanations" from other rights that were actually set forth in the text. And those who oppose Roe have argued that such logic is nothing more than an unelected Court deciding, in effect, that "based on what else there is in the Constitution, we think this right belongs in there, too." Conservatives argue that such an approach makes everyone far too dependent on the subjective preferences of individual judges.

The byword for strict constructionists could well be: Do not emanate into the penumbra. That is, don't go finding rights that have no clear basis in the actual text of the Constitution.

To return to the subject of the NY Times article, however . . . In the end, it's unfair to equate "strict constructionism" with "pro-life" in a political sense (even though, in effect, strict constructionists would be likely to object to Roe's reasoning). The reason is this: A judge could be avidly pro-choice and still a strict constructionist. That would mean, however, that rather than believing that the abortion right should have been found in the US Constitution, such a person would believe that abortion rights should have been established instead through the laws passed by the peoples' elected representatives.


Post a Comment

<< Home