These days, it seems, there is a growing legion of self-described “strict constructionists” when it comes to constitutional law.
Strict construction is the legal doctrine that, when applied to the Constitution, has been described as ascertaining and following the intent of the framers at the time the document was written.
This is without reference to the differences in conditions, inventions and societal changes between then and now.
On the other hand, liberal or fluid construction calls for issues of constitutional magnitude to be reasonably and fairly evaluated in the context of current times and circumstances to implement the Constitution’s objects and purposes.
In comparing the two, we must remember that the world was very different in 1787, when the Constitution was written.
Women were not allowed to vote.
Slavery was a way of life in the South.
The light bulb was yet to be invented.
We didn’t have radio or telephones, let alone television, mass media or the internet.
There were no automobiles, trucks or buses. There weren’t even railroads.
Firearm technology was in its dark ages, the most modern firearm of the day being a single-shot flintlock gun or pistol, which utilized a flint stone to strike a spark of fire that ignited a hand-loaded gunpowder charge, to expel a round steel ball out of an unrifled barrel.
There was little or no government restriction or control on abortion, and it was not a political or governmental issue.
These are just a few of the vast differences between the world then and now.
In my opinion, to suggest that the intent of the framers living in that world some 230 years ago should be the standard by which Constitutional principles in today’s society should be applied is absurd.
But what is beautiful about the Constitution, more than two centuries after it was written, is that the philosophy, framework and principals it espoused are still relevant to the modern world, through the concept of fluid interpretation, as applied to today’s world and our current society.
Yet still, we have those who suggest that the Constitution should be strictly construed, to reflect the intent of the framers and the world they lived in.
Well, I just don’t get it.
The hue and cry of many of these same strict constructionists is a condemnation of what they call “activist judges,” whatever that means.
A Supreme Court justice once defined an activist judge as nothing more than one who ruled in a way the critic didn’t like.
And we must not forget that so called “activist judges” ended discrimination in public schools, overruled laws prohibiting interracial marriage, terminated laws that prohibited birth control, struck down statutory limitations on corporate political spending, and recognized the constitutional right to same-sex marriage and abortion.
I challenge anyone to state that all of these cases were wrongly decided, and I would suggest that there is no one – no one who is sane and rational – who does not agree with at least one or more of these decisions.
This short list reveals that neither conservatives nor liberals have a corner on the market regarding so-called “activist judges.” It is just a label reflecting upon the sour grapes of disagreement.
And certainly, the framers of the Constitution could not have imagined the issues that would be determined by the wisdom of the document they conceived, oh so long ago.
Their wisdom of that day continues to make ours the greatest nation in the history of mankind.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.