I think I finally understand the attitude of those people who call themselves strict constructionists, who claim to be represented in the judicial arena by personalities like the Presidents current nominee for the Supreme Court, Judge Alito. In her editorial for the Maroon (The Lefts legal sleight of hand 11/8) Laura Hamilton expressed their collective opinion in a way easily understood by anyone.
She wrote, if California passed a law forbidding people from eating cheese on Tuesdays, that law would be perfectly constitutional, suggesting that any law which does not literally impinge on an explicitly enumerated right in the Constitution passes judicial scrutiny. Similar sentiments have repeatedly been invoked in the news media during the recent Supreme Court nomination hearings as justification for Judge Alitos radical reactionary agenda, which consists primarily in rolling back the enforcement of civil rights.
Needless to say, the Constitution itself and the corpus of substantive due process jurisprudence that has accrued for the past hundred years do not avail Hamilton, or indeed any other so-called strict constructionist, in this argument.
The principal authority I will cite against this point of view is that of James McReynolds, a former justice of the Supreme Court, who wrote the following in the seminal case of Meyer v. Nebraska in 1923: No state…shall deprive any person of life, liberty or property without due process of law. While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also …generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men…The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action, which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.
I should point out before Justice McReynolds is lampooned as a judicial activist that he was notorious for his racism and anti-Semitism, and he was one of the most enthusiastic members of the Lochner-era court that invalidated nearly any regulation that limited economic freedom. Clearly he was writing not from a desire to legislate from the bench but was simply clarifying an understanding of the Constitution that had existed since it was written, that it limits the power of the states to pass arbitrary laws that bear no relation to that states police power or that exceed its boundaries.
According to the view of the states police power propounded by Judge Alito, Hamilton, and the other strict constructionists would permit almost any law restricting behavior in any arbitrary way to be passed, no matter how noxious its effect. Because there is no explicit Constitutional guarantee of a right to physical movement, for instance, a law prohibiting people from walking on the street would entirely pass the Alito/Hamilton test, as would laws prohibiting marriage, education in useful subjects, or, in Justice McReynolds words, those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. None of these occupations is mentioned verbatim in the text of our Constitution, and yet it protects their practice.
Somehow I suspect that the far right would begin to understand the absurdity of strict constructionism if a state were to pass a law prohibiting the discharge of firearms on the basis that the Constitution only enumerates the rights to keep and bear them, not actually shoot with them. For that matter, the Constitution never mentions the principle of judicial review, and perhaps Judge Alito and his followers-on would be much happier if we simply overturned Marbury v. Madison and forbade the Court from discussing the issue of constitutionality at all.
I do not deny that constitutional clarification of certain civil rights would aid the courts in constructing the law surrounding them, but the lack of explicit enumeration of certain rights in the Constitution does not mean they do not exist, as the 9th Amendment makes clear: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That a right to privacy is not enshrined in the Constitution does not mean that none exists, or that the judiciary should sit idly by as ultra-reactionaries erode the system of civil rights instantiated by the founders that makes this country a haven for free thought, political progress, and scientific development.
It is one of the greatest lies of the past century that the Constitution only protects rights that it directly mentions. This view has thankfully not been shared by the Supreme Court over the years, or else America would long ago have choked to death in the oppressive grip of arbitrary law.
I will close with the words of New York Court of Appeals Justice Benjamin Cardozo (later of the U.S. Supreme Court), who wrote, The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. A promise may be lacking, and yet the whole writing may be instinct with an obligation, imperfectly expressed. Cardozo was making a point about contracts, but his wisdom is no less applicable in the world of constitutional jurisprudence.