Inconsistent Strict Constructionists

I will be discussing the Supreme Court and I am open to any input as I am not an attorney and have not even studied constitutional law, so it is very probable that I will make some big errors in my reasoning. However I think that what is going on in the Supreme Court is so important that concerned citizens like myself ought to educate themselves and begin to offer some opinions, so here goes.

In a recent article in then Spokesman-Review (see ) the author Sam Hananel of the Associated Press makes some interesting comparisons between our newest Supreme Court Justice Neil Gorsuch and Justice Clarence Thomas. Hananel points us to Thomas’ first dissent on a 1992 case involving a prisoner who wanted to sue prison officials under the eight amendment’s ban on cruel and unusual punishment due to being punched and kicked by guards. The court ruled 7-2 that he had a right to sue, but Thomas and Justice Scalia voted no. Thomas’ argument was that the Constitution’s framers “simply did not conceive of the Eight Amendment as protecting inmates from harsh treatment.”

First of all, I think Thomas was correct in assuming that the framers didn’t give a rat’s ass about whether prisoners were beaten or not. After all, most of these framers believed that it was quite alright to own other human beings, and beating, raping, and even killing such “property” was fine and dandy. In fact many of them owned slaves themselves. To think that the government had a right or even an interest in interfering with such “property rights” was unthinkable. So to believe that a simple beating of a prisoner was cruel and unusual punishment would be also unthinkable to them.

So the problem with so called “strict constructionists” like Thomas and Scalia and Gorsuch is two-fold:

Firstly, the practice of “strict constructionism” is contrary to established precedent. Yes the constitution is the supreme law of the land and there are legitimate ways to amend it. However, there is also a long tradition of making incremental changes in how it is interpreted. It is fine for the Supreme Court to occasionally go against pre-established precedent, but this would only be done in extraordinary cases when, for example, rights are being violated, or separation of powers are being circumvented, that the framers could not realistically expect to have anticipated.

Secondly, the reasoning is not practiced consistently. I will present two examples of this. The first example involves the first amendment which states: “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.”

It would be obvious to any reasonable observer that the framers of the constitution also did not conceive of the first amendment as establishing corporations or political parties as having the same rights as human beings and that giving huge sums of money to candidates would be considered an example of “free speech.” They would likely have had no particular problem with anyone who wanted to give huge amounts of money to candidates, but they would not argue that this was because of the first amendment’s right of free speech.

Nevertheless, in May the court turned away an appeal from Louisiana Republicans seeking to ease limits on soft money by political parties in federal elections. The vote was 7-2. Thomas and Gorsuch in the minority argued that the court ought to consider striking down the limits. I have not done the research on this case to argue convincingly but it would seem to fit with the idea that the government should not restrict moneys spent on elections, which takes us back to the idea that corporations should be treated like human beings, even though there is no evidence that the framers of the Constitution has any such idea when they framed the first amendment.

The second example involves the second amendment which states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Throughout history, this amendment, through precedent, has come to be interpreted to mean that restrictions on the right for an individual to bear arms must be severely constrained to the point that an individual, without any connection to any sort of militia, should be allowed to own and carry around an AK-47 capable of shooting 30 to 75 rounds in a few seconds, potentially killing 50 or more people in a crowd before anyone would have a chance to react. To modify Thomas’ argument regarding prisoners: the framers of the Constitution simply did not conceive of the second amendment providing the right of an individual to own and carry around a weapon capable of killing 50 people in fifteen seconds. However, of course, neither Thomas or Gorsuch will ever make that argument. Rather, they will honor precedent that has over the years slowly interpreted the second amendment to mean the right to bear arms without considering the lethality of those arms.

To take the argument every further there is evidence of what the framers were in fact thinking when they constructed the second amendment. At the time, there were hundreds of slave rebellions going on in the south and almost all white men between the ages of 18 and 45 were required to be part of slave patrol militias. These militias patrolled the plantations to control the slaves and attempt to keep down the rebellions. There was a fear that the proposed constitution (especially Article 1, Section 8 which gave the federal government the sole power to raise a militia) could be used to prevent the local slave patrols from doing their work or worse, could enlist slaves into the federal army which would then provide for their freedom. See for more detailed information. So if the strict constructionists like Thomas and Gorsuch were consistent in their principles they would not argue to lift restrictions on the right to bear arms, based on what knowledge we have about the actual reasoning of the framers of the second amendment.

There is talk that Justice Kennedy may be retiring soon. If this occurs and President Trump has the chance to appoint another “inconsistently-applied strict constructionist” to the Supreme Court, we could be in for a generation of trouble.

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