Conservative Judicial Restraint-Reality or Myth?

The Senate confirmation process for Supreme Court justice nominee Elena Kagan is well under way. The battle regarding how to interpret the United States Constitution is predictably in high gear. Most Democrats and liberal minded people are generally believed to have a view that the Constitution should be interpreted in an expansive manner to suit a changing country. Conversely, most Republicans and conservative minded people are believed to have a view that the Constitution should be interpreted strictly the way it was written.

My belief is that both sides have a rather elastic view of the Constitution. The conservatives don't see their views in this manner. The extent of their elasticity usually depends on the issue involved and how their view of that issue is best served. I will attempt to show with various examples how those who advocate judicial restraint, also known as strict constructionism, are not truly narrow interpreters of the U.S. Constitution.

The first and main area of the U.S. Constitution that allows for an elasticity in constitutional interpretation is the 9th amendment. This amendment is the one used as a basis for privacy rights. The most famous and controversial of the cases determined under this amendment is Roe v. Wade which allows a woman the choice of taking her embryo to full term or aborting it. This amendment states, and I quote, "The enumeration in the Constitution , of certain rights, shall not be construed to deny or disparage others retained by the people". The founding fathers knew that they had only touched on the most basic rights that they felt important at that time. With this amendment, they gave voice to the belief that times and views change. Therefore future Justices could protect other rights not listed in the original Bill of Rights if they judged it necessary.

The 9th amendment inbedded elasticity into the Constitution. It is true that passing constitutional amendments are an important way to also accomplish this. But the signers of the Constitution recognized that this would be a long and tedious process. They wrote this amendment to remedy essential and immediate injustices. I believe this was wise and it is an important basis for the counter argument to strict constructionism.

Next I would like to examine the classic debate between advocates for states rights and advocates for federal powers. Strict constructionists refer to Amendment 10 in this matter. This amendment reads as follows, "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people". Southern conservatives have argued all the way back to the slavery era that state laws are supreme on both the question of slavery and on how to treat black Americans subsequent to Reconstruction. They even resorted to seceding from the Union sparking the Civil War on this basis. Later the creation and defense of the Jim Crow laws were justified by way of the states rights argument. These laws segregated black Americans from white Americans. The 1896 Plessy v. Ferguson ruling upheld the constitutionality of segregated accommodations as long as they were separate but equal. The Supreme Court struck the first blow against these Jim Crow laws with the famous 1954 Brown v. the Board of Education of Topeka, Kansas decision. This ruling found that historically, schools that were segregated were and had never been equal anywhere in the United States. Therefore they ruled that segregated schools were unconstitutional.

The states rights argument has been used on many other issues such as gay rights, abortion, and others. Yet they go against this doctrine when it is convenient to their cause. The most prominent example is Bush v. Gore. Article 2, Section 1 of the Constitution gives the states the power to decide how to run their elections for U.S. Presidential electors. The Florida Supreme Court ordered a re-count of Florida's 2000 presidential vote due to discrepancies with their ballots in this election. The U.S. Supreme Court overruled them strictly along ideological and party lines. So much for the sanctity of states rights. During the Teri Schiavo feeding tube removal case, the Republican Congress passed legislation to move this case to the federal courts. This was after the Florida Supreme Court refused to rule for Teri's parents over her husband. The Florida court upheld the husband's right to pull Teri's feeding tube due to her vegetative state. Her parents were against this. The U.S. Court of Appeals and the U.S. Supreme Court refused to hear the case on the grounds that it was a state matter. Just another example of intellectual inconsistency on the part of the strict constructionists.

A final area exposing chinks in the strict constructionists' armor are in how they deal with the essential freedoms in the Bill of Rights amendments 1 through 6. Let's first examine their 2nd Amendment argument on the right to bear arms. Conservatives fight tooth and nail at any restrictions placed upon gun ownership and usage that legislatures might place upon them. These include banning assault rifles, requiring background checks, and any common sense precautionary restrictions. Yet they are not so strict when it comes to defending other Bill of Rights amendments.

Separation of church and state is a hallmark of the Constitution. But conservatives often espouse policies such as school prayer and teaching religion in the public schools as a counterargument to the Theory of Evolution and the Big Bang Theory which are scientific theories. The conservatives also have no problem showing their elasticity with freedom of speech. Banning flag burning was a major project for them. The Supreme Court ruled that flag burning was allowed because it was a form of speech and therefore protected no matter how heinous flag burning appeared to be. This still did not stop conservatives. They continued to push this issue with a proposal for a constitutional amendment. This action went absolutely nowhere except to extend this matter as a political issue.

Finally, strict constructionists have showed no trouble bending Amendments 5 and 6 with regard to the Guantanamo Bay detainees and other terror suspects. These amendments state that no one should be held and denied their liberty without a speedy trial except in times of war or public danger. The public danger argument could certainly be argued for directly after the 9/11 terror attacks when uncertainty reigned supreme. But indefinite detainments without trial after extensive time has passed is totally unreasonable. There is always danger. But this exception was meant for immediate danger. The Patriot Act is another example where conservatives have stretched the elasticity of the Constitution in response to 9/11. Unfortunately it has also lessened many of the privacy rights of U.S. citizens because of warrantless searches and wiretaps.

In a few days the U.S, Senate will be voting on Elena Kagan's confirmation to the U.S. Supreme Court. Very few conservative Republican votes will be cast to confirm her. Most of the explanations for the nay votes will be on strict constructionist grounds. This is an unfortunate and growing trend. Justices Antonin Scalia and Ruth Bader Ginsburg were overwhelmingly confirmed in past decades and they were very conservative and very liberal respectively. This illustrates my point that this process has become absurdly political and ideological.

The Senate has a very important responsibility to examine these nominees because they are lifetime appointments. It is also important to have an honest examination of how a nominee will interpret the U.S. Constitution. Senators and all politicians should examine their own views and be honest in regards to what ideologies and opinions they really want from Supreme Court justices. The Constitution clearly allows for elasticity to deal with new issues and rights that the founding fathers never envisioned. Liberals recognize and affirm this. Conservatives deny this yet argue many cases on elastic constitutional grounds.

We are watching this play out again with the Arizona immigration law. Controlling the United States borders, immigration, and citizenship is clearly a Federal power under the U.S. Constitution. But conservatives are once again stretching the Constitution to fit their viewpoint and further their political fortunes. This law requires Arizona police officers to enforce immigration law. Arizona has no power to do this under the Constitution . This is just another example of judicial restraint being thrown out the window when it suits the conservatives. It is further proof to help answer the title of this article. Conservative judicial restraint is clearly a myth.

More by this Author

Comments 13 comments

profile image

HSchneider 6 years ago from Parsippany, New Jersey Author

I would just like to add another glaring and amazing example of how conservatives have totally buried judicial restraint as a philosophy. This discussion of amending the 14th amendment is atrocious. Especially from such a sensible conservative such as Lindsey Graham. This amendment states that everyone born in the United States is a citizen and have all the rights accorded to citizens of the U.S. The conservatives want to stand this on its head by amending it to exempt those who were born of illegal immigrants. I wish this had come to the fore before I wrote this Hub. I believe I may have made this example 1. From now on conservatives and Republicans should vote down Supreme Court nominees strictly on grounds that they disagree with their politics. The judicial restraint argument is now totally dead. This proposal is a more extreme attempt at judicial activism than anything liberals have ever tried.

profile image

Phoebe Pike 6 years ago

Ironically I just wrote a hub about the 14th. This country is beginning to really bother me. Why can't we be equal anymore?

profile image

HSchneider 6 years ago from Parsippany, New Jersey Author

I really don't know why. Ironically I don't believe the politicians behind this attempt really believe in it. Sen. Lindsey Graham is usually very tolerant and was a leader in immigration reform. A lot of it is politics. Unfortunately there are many who are just afraid of foreigners or minorities and are just scared. I hope this trend abates when the economy strengthens. Also illegal immigration can be stopped by cracking down on companies that hire them. Messing with the constitution is not the way and is dangerous.

James A Watkins profile image

James A Watkins 6 years ago from Chicago

The words "separation" "church" and "state" do not appear in the Constitution. As far as allowing vountary prayer in schools, this was the norm for 300 years in America. So it is bogus to claim that Conservatives wanted to implement it when the truth is Social Liberal Atheists wanted to eliminate it—which they did. The banishment of Christianity from public schools has favored another religion in its place—Secular Humanism.

Who do you know that has been affected by the Patriot Act? I have asked hundreds of Social Liberals this question and have yet to have received a report of a single incident.

The birthright to citizenship was for former slaves and their families. It was never intended for Mexicans to sneak across the border in the middle of the night, in the desert, and give birth to American citizens.

I have published Justice Scalias views on the Constitution and the Court on this Hub (if you are interested in what this issue is really all about):

profile image

HSchneider 6 years ago from Parsippany, New Jersey Author

Thanks for reading James. I will read your Hub on Scalia and comment later. Amendment 1 stated that Congress will make no law respecting an establishment of a religion. To have a prayer in our publically funded schools is a violation of this amendment regardless of what was done beforehand. Also Secular Humanism is not a religion. It is a philosophy but does not control anything taught in the schools. The Patriot Act has been very good in tracking down illicit money from hidden offshore accounts. This section was long overdue. It is true that no one has felt an effect yet from the wiretaps and surveillance without judicial scrutiny. That does not mean it will not occur in the future. Besides it still fits the theme of my Hub that conservatives are not always for judicial restraint. As for the 14th amendment, it is true that it was written to give citizen rights to former slaves. But it was not written to state that it was just for former slaves. It states " All persons born or naturalized in the U.S." Again my theme was selective judicial restraint. You may be right but this is not judicial restraint. The Constitution was written to be elastic within reason to adapt to different times and changing society. Slavery is in the constitution. A war had to be fought before it was abolished. I had hoped you would read my Hub and write about your disagreements. I look forward to debating you more over them and I will read the Scalia Hub and comment.

James A Watkins profile image

James A Watkins 6 years ago from Chicago

You have made a very nice riposte. Religion is in general a set of beliefs explaining the existence of and giving meaning to the universe, often containing a moral code governing the conduct of human affairs. The term secularism was created in 1851 by George Jacob Holyoake in order to describe "a form of opinion which concerns itself only with questions, the issues of which can be tested by the experience of this life." Once a staunch Owenite, Holyoake was strongly influenced by Auguste Comte, the founder of positivism and of modern sociology. Comte believed human history would progress in a 'law of three stages' from a 'theological' phase, to the 'metaphysical', toward a fully-rational 'positivist' society. In later life, Comte had attempted to introduce a 'religion of humanity' in light of growing anti-religious sentiment and social malaise in revolutionary France. This 'religion' would necessarily fulfil the functional, cohesive role that supernatural religion once served.

John Dewey described Humanism as our "common faith." Julian Huxley called it "Religion without Revelation." The first Humanist Manifesto spoke openly of Humanism as a religion. Many other Humanists could be cited who have acknowledged that Humanism is a religion. In fact, claiming that Humanism was "the new religion" was trendy for at least 100 years, perhaps beginning in 1875 with the publication of The Religion of Humanity by Octavius Brooks Frothingham (1822-1895), son of the distinguished Unitarian clergyman, Nathaniel Langdon Frothingham (1793-1870), pastor of the First Unitarian Church of Boston, 1815-1850. In the 1950's, Humanists sought and obtained tax-exempt status as religious organizations. Even the Supreme Court of the United States spoke in 1961 of Secular Humanism as a religion.

You wrote: "Amendment 1 stated that Congress will make no law respecting an establishment of a religion. To have a prayer in our publically funded schools is a violation of this amendment"

When the First Amendment was written there was prayer and the Bible in every public school in America, and there continued to be until 1962. Therefore, I would venture to say that the writers of this amendment did not think it to mean what you think it means.

The first act of America's first Congress in 1774 was to ask a minister to open with prayer and to lead Congress in the reading of 4 chapters of the Bible. In 1777, Congress, facing a National shortage of `Bibles for our schools, and families, and for the public worship of God in our churches,' announced that they `desired to have a Bible printed under their care & by their encouragement' and therefore ordered 20,000 copies of the Bible.

In 1789, the first Federal Congress, the Congress that framed the Bill of Rights, including the First Amendment, appropriated Federal funds to pay chaplains to pray at the opening of all sessions, a practice that has continued to this day, with Congress not only funding its congressional chaplains but also the salaries and operations of more than 4,500 military chaplains. In 1789, Congress, in the midst of framing the Bill of Rights and the First Amendment, passed the first Federal law touching education, declaring that `Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.'

In 1853, the United States Senate declared that the Founding Fathers 'Had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people . . . they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy.' Inside the United States Capitol the declaration `In God We Trust' is prominently displayed in both the United States House and Senate Chambers. In 1854, the United States House of Representatives declared `It [religion] must be considered as the foundation on which the whole structure rests . . . Christianity; in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions.'

in 1870, the Federal Government made Christmas (a recognition of the birth of Christ, an event described by the U.S. Supreme Court as `acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch, Congress, and the courts for 2 centuries' ) and Thanksgiving as official holidays.

The constitutions of each of the 50 States, either in the preamble or body, explicitly recognize or express gratitude to God. America's first Presidential Inauguration incorporated 7 specific religious activities, including— the use of the Bible to administer the oath; affirming the religious nature of the oath by the adding the prayer `So help me God!' to the oath; inaugural prayers offered by the President; religious content in the inaugural address; civil leaders calling the people to prayer or acknowledgment of God; inaugural worship services attended en masse by Congress as an official part of congressional activities; and clergy-led inaugural prayers, activities which have been replicated in whole or part by every subsequent President.

All sessions of the United States Supreme Court begin with the Court's Marshall announcing, `God save the United States and this honorable court.' The United States Supreme Court has declared throughout the course of our Nation's history that the United States is `a Christian country', `a Christian nation', `a Christian people', `a religious people whose institutions presuppose a Supreme Being', and that `we cannot read into the Bill of Rights a philosophy of hostility to religion.'

profile image

HSchneider 6 years ago from Parsippany, New Jersey Author

You are very correct in your history of prayer in the government and schools over our history. Most of the founding fathers probably had no problem with it. But not all. Thomas Jefferson is one prominent exception that I can think of. My argument is that just because they felt that way, it does not necessarily make them correct. I believe it to be subjective and interpretative. Besides, our society was much more homogeneous back then. That is to say Christian. We still are mostly Christian though not nearly to that degree. My point again is that the Constitution was written to be elastic. Slavery was written into it. It was a devil's bargain to get it passed. We had to fight a bloody war to resolve it. Only white propertied men could vote in the beginning. This also changed as time went on as our republic evolved. Now with our much more diverse society, the court ruled against prayer in the public schools because it was an unfair imposition on different minorites who believed otherwise or not at all. You also quite correctly show that many prominent Secular Humanists portray their views as a religion. Maybe it is, maybe it is not. I don't really know. I don't see it being taught in our schools and I don't want it to be taught in our schools. I believe we should stick to Math, Language Arts, Science, Social Studies, and the rest in our public schools. I also believe it should be left to families, churches, and private schools and organizations to teach their religions. As for the God preambles, military chaplains, and the rest, I find them to be more ingrained in our society and less indoctrinaire than prayer in our schools. Your point about Christmas is well taken. It is another example of a holiday that is ingrained in our society. But it is not forced on anyone and they simply get a day off. Everything is a trade off and changes over time. I consider it part of the magic of our Constitution. I appreciate your views and the chance to debate them with you.

tonymac04 profile image

tonymac04 6 years ago from South Africa

This is an interesting debate. And very relevant even for those not in the US or US citizens. In South Africa presidential inaugurations and parliamentary sittings are blessed by representatives of all the religions present in South Africa. We have prayers by Rabbis, Imams, priests and Uncle Tom Cobbleigh and all! I think it works, though personally I would prefer no religious overtones as they seem to impart a "divine" sanction on what is essentially a human endeavour. I prefer that we humans take responsibility for our actions even in the political sphere - indeed perhaps most particularly there! I see the religious trappings as infringing on democracy in a way - it's not easy to oppose God, after all!

Thanks for this interesting one.

Love and peace


profile image

HSchneider 6 years ago from Parsippany, New Jersey Author

I also would prefer no religious presence at official settings but it is tradition here. They are kept non-sectarian so I don't have a major problem with them. I do oppose them in our public schools. Government run schools should teach school subjects. Families, churches, and religious schools may conduct prayers and teach religion. Thank you for reading and commenting as always.

profile image

HSchneider 5 years ago from Parsippany, New Jersey Author

Justice Samuel Alito proved my point again that Conservative Judicial restraint is fictitious. He voted against Westboro Baptist Church in their court case asking them to be allowed to protest at soldier funerals. This is a horrible thing they do protesting homosexuality and other perceived sins. But the court ruled 8-1, rightfully so I believe, that they be allowed to do so because of freedom of speech. It is true that the other 4 conservative judges voted in the majority but Alito fudged the Constitution to vote no. This sounds like judicial activism to me. My point is that the Constitution is in the eyes of the beholder and Alito has proven this. It all reverts back to the 9th amendment. The Constitution was meant to be elastic when necessary and to change with the times.

profile image

Sooner28 5 years ago

When the conservative majority on the Supreme Court decided that corporations should be able to spend unlimited amounts of money because money was "equivalent" to speech, I lost a ton of respect for the institution as a whole.

The death penalty is also still on the books, and the Supreme Court has still not ruled it as "cruel and unusual punishment." I feel as though, even in places where there is supposed to be objectivity, it is severely lacking. The conservatives on the court have stained the entire judicial system.

profile image

HSchneider 5 years ago from Parsippany, New Jersey Author

This conservative Supreme Court is supposed to be strict constructionist but instead they blindly follow their political preferences. You are correct that the Citizens United decision and their death penalty rulings are not consistent with the Constitution. I also hate the hypocrisy. The Constitution was written to be a living and malleable document to adapt to the times. Conservatives will not admit that. Thanks for the comments, Sooner28.

profile image

HSchneider 2 years ago from Parsippany, New Jersey Author

Today the supposedly strict constructionist Supreme Court justices ruled for Hobby Lobby that they do not have to pay for contraception for their employees under the Affordable Healthcare Act. They ruled that closely held corporations can opt out of provisions due to their religious objections. Again, corporations are ruled to be people. These Justices are very elastic in their ruling not strict constuctionists. They also failed to uphold Congressional legislation. The Constitution considered Congress, especially the House, to be the people's chamber and should be supreme. This ruling is further evidence of my assertion that the Constitution is elastic and all Justices and people are elastic in their Constitutional views. Just as the Founders meant it to be.

    Sign in or sign up and post using a HubPages Network account.

    0 of 8192 characters used
    Post Comment

    No HTML is allowed in comments, but URLs will be hyperlinked. Comments are not for promoting your articles or other sites.

    Click to Rate This Article