Private: Guest Blogger: Judge Alito and Strict Construction

by Michael CoblenzMichael Coblenz is an attorney in Lexington, KY. He has a MA in American History and an LLM in Intellectual Property law.
This is the first in a series of three posts on Judge Alito and strict construction.
The debate over the nomination of Judge Samuel Alito to the Supreme Court presents the opportunity to discuss, and perhaps debunk, many of the fallacies behind the conservative legal theory called Strict Construction. When President Bush nominated Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O'Connor he said that "Judge Alito ... applies the law in a principled fashion. He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." This was a slight variation on what President Bush said when he nominated John Roberts, and has said when making most judicial nominations: "He will strictly apply the Constitution and laws, not legislate from the bench."
President Bush consistently praises Strict Construction, but never really explains what it means. The fullest expression of his views came during the 2000 presidential campaign. Bush said that if elected President he would appoint as Federal judges, "people ... who have shared the judicial temperament that is necessary I think to adhere to our philosophy which is a strict construction of the Constitution, that the Constitution needs to be strictly interpreted and people should not use the bench from which to legislate."
Judge Alito has never specifically identified himself as an adherent of Strict Construction or any of its variants, but he has affirmed his belief in conservative principles and uses the terminology favored by conservatives. For example, in accepting the nomination, Judge Alito said: "Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system."
This is standard conservative rhetoric regarding the judiciary, which shouldn't be surprising since Alito has proudly called himself a conservative. In early 1985, while working as a lawyer for the Solicitor General, Alito wrote a memo to the Solicitor General suggesting that the Reagan administration would not be able to directly overturn Roe v. Wade, 410 U.S. 113 (1973), but instead should work to chip away at the ruling and its application. The memo concerned the case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), which involved a Pennsylvania law requiring that a woman considering an abortion be given detailed information on the procedure its effects. The Third Circuit struck down the Pennsylvania law as violating Roe v. Wade, and Alito's memo discussed the possibility of an amicus brief supporting the state law. "In the course of the brief," Alito wrote, "we should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled." Opposition to Roe v. Wade is a bedrock conservative principle.

Later in 1985, when applying for a job as a Deputy Assistant Attorney General within the Justice Department, Alito said that he was "a conservative and an adherent to the same philosophical views that I believe are central to this [the Reagan] Administration. ... I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government [etc.] ...." He also states that "it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General ... and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court ... that the Constitution does not protect a right to an abortion."
Alito doesn't explain why he believes that Roe was wrongly decided, but it is accepted conservative ideology that Roe is wrong because the constitution does not contain a right to an abortion, nor a right to privacy, which is the foundation for the right to an abortion. This is premised on the idea that in order for a right to exist it must be found in the Constitution as it was originally understood. And this idea of interpreting laws based upon an understanding of the beliefs and ideas of the founders is at the heart of Strict Construction.
Roe v. Wade came after a long line of Supreme Court rulings that angered conservatives. They complained about legislating from the Bench for many years, in particular during the fifties, sixties, and seventies, when the Warren and Burger Courts made a number of rulings they despised. These decisions included the expansion of the rights of "criminals" through more rigorous rules on searches and the questioning of suspects, outlawing prayer in public schools, the (temporary) ban on capital punishment, and forced busing of students to integrate schools. The culmination of this era of "judicial activism" was the Roe v. Wade decision allowing abortion.
Conservatives derided these rulings as examples of a "Living Constitution:" a document that changed with the times. In an attempt to create philosophical arguments to oppose these decisions, Conservative lawyers and scholars developed the idea that the Constitution should mean today pretty much what it meant when it was adopted. And judges, when they are in a position to interpret a law, should strictly construe the text based on the intent of the men who wrote it. If the people, or their representatives in Congress, wanted to change the Constitution they can do so by the amendment process.
There is obviously a value to having a theory or a framework for interpreting the Constitution. The law is, among other things, supposed to provide stability and consistency, and if judges have no guidelines for determining the Constitutionality of laws they run the risk of creating new rules based on little more than what they think may be best for the situation at hand, and the idea of consistency will be eroded, if not abandoned outright.
Strict construction, where judges supposedly "strictly apply the law" and "don't legislate from the bench" gives the appearance of a consistent theory. It also has the added political benefit of making it appear that those who aren't strict constructionists have no basis for their analysis, and are simply making the law up as they go along. But that is far from the truth. All judges are bound by existing law, and Supreme Court justices are bound by pre-existing cases and the Constitution.
There is much to be said for a coherent theory of Constitutional interpretation, and conservative jurists and theorists have brought forward valuable ideas about the importance of the texts and the meaning of the Constitution, but Strict Construction is hardly a coherent theory. Its main problem, as will be discussed in future posts, is that it is based on a fundamental misunderstanding of creation of the Constitution and the history of that era.
One way to expose some of the logical errors and historical inaccuracies of the so called theory is through a series of questions presented to Judge Alito (or any future conservative judicial appointee). Following are a series of questions on Strict Construction and the right to privacy:
1. Do you believe in Strict Construction?
2. President Bush has provided only a cursory definition of Strict Construction. How would you define Strict Construction?
President Bush has said that Justice Antonin Scalia is one of the Supreme Court Justices whom he most admires. But Scalia has said, "I'm not a strict constructionist, and no one should be." He has also mocked strict construction, calling it "a degraded form of textualism that brings the whole philosophy into disrepute." Clearly President Bush and Justice Scalia don't agree on Strict Construction.
3. Given the obvious disagreement between President Bush and Justice Scalia, how can any of us view strict construction as anything more than political rhetoric?