“Strict Construction” Strictly Construed (March 14, 2005)

“Strict construction” is a legal philosophy that construes every law and regulation to promote and advance the interests of rich white boys.

Its adherents urge the abrogation of all legislation and Constitutional developments since 1787, with desperately few exceptions.  The movement springs from a conviction that no good ideas have been propounded in over 200 years.  In addition, anything that worked poorly in the past is considered good enough for us today.  The Ninth Amendment to the Constitution may state:  “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The party faithful disparage this inconvenient language in part because it was not asserted until 1791.  Too late, they say.

However, in deference to this fundamental principle, a few newfangled notions are tolerated.  For instance, they contend that Blacks will not be treated as 3/5ths of a human being under the law.  With rises in the Consumer Price Index (CPI), they will be endowed by these creators as 7/10ths of a human being.  White women are to be accorded 3/4ths status; Black women are to be accorded 72.5 percent status.

Virginia proclaims that it is for lovers, but it wasn’t for Loving.  When a consenting Black adult and a consenting White adult sought to marry, they encountered a Virginia government edict precluding them from engaging.  In Loving v. Virginia (1967), the Supreme Court allowed the two to decide for themselves.  Nine souls on the Court spoke with one voice to reject miscegenation laws.  This type of clear thinking is anathema to the strict deconstructionists.  They want neo-activist judges to actively legislate against these legal developments.

However, the strict constructionists are not unreconstructed in their antipathy to all developments since 1787.  They condemn the Supreme Court in action but champion Supreme Court inaction.  When the Supreme Court had an opportunity a generation ago in San Antonio v. Rodriguez (1973) to provide adequate funding for public schools, the Court implicitly found that “separate and unequal” schools passed constitutional muster, although “separate but equal” schools perforce failed muster.  Later courts did make valiant efforts to equalize funding between poor kids and rich kids.

Advocates of the reactionary doctrine note that men’s and women’s bathrooms are still separate but equal.  Why not the schools and other public and private institutions, they suggest?  Strict constructionism is coming to a demagogue near you.

The disdain for miscegenation laws and anxiety over “separate but equal” treatment is still at play among concerned individuals.  Today, a California trial judge held that California’s ban on same-sex marriage is unconstitutional, comparing it to the miscegenation laws that once blocked interracial marriage and promoted “separate but equal” segregation.  Once again, the strict constructionists seek to keep litigating the issue and advancing unequal protection under the law.  The America antinomy is to proclaim equal protection under the law and to practice oppression.

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