November 29, 2005

The Fair Construction Amendment

It's an interesting notion: requiring that the Constitution be "interpreted" as it was written, without finding things in it that aren't there. It would essentially make judicial activism unconstitutional. One wonders whether such an amendment would even be enforceable, but it's certainly intriguing.

Karl Spence is a proponent, and his latest book focuses on the crime wave of the 1990s, explaining how the Fair Construction Amendment would augment the rule of law. If nothing else, his title is gutsy: Yo, Liberals! You Call This Progress?

This book, other books, and some background on the Fair Construction idea are available here.

Posted by Attila Girl at November 29, 2005 12:20 PM | TrackBack

Given the willingness of the SCOTUS to decide the Constitution means whatever they hell they want it to mean i don't see such an amendment having much of an effect.

Posted by: Stephen Macklin at November 29, 2005 03:16 PM

Crime rates have been declining since the early nineties in most categories:

I get the feeling you don't read newspapers, but just take it on faith that crime must have gone up because Clinton was president.

Incidently do you understand the position of Justice Marshall or do you know from faith based reasoning that we've been on the wrong course for nearly 2 centuries?

Do you perhaps hold seances with President Diem to guide you so you can lecture the people of this country on what to do without actually reading their history or studying their laws?

Posted by: angela at November 29, 2005 04:42 PM


What part of the word "constitution" do you not understand? It isn't something to be "interpreted." It is what it is. You do not discover something with it that was never seen before. It's there, in black and white, and it doesn't take a rocket scientist to figure out what it says.

On the other hand, it can take an imbacile to competely screw it up. The US Constitution was composed by pure genius, but it is being bastardized by morons.

Posted by: John at November 29, 2005 04:53 PM

I will apologize for the Diem remark, but do you know that the campaign against judical activism was part of the "southern strategy" and one of the reason it was so reviled was that the courts outlawed segregation and Jim Crow? Not technically dealt with by the constitution.

The debate goes back and forth, there are good arguments that the "right to privacy" used in Roe is questionable, but is a debate within a living constitution.

Most scholars both conservative and liberal argue that the third branch of government is there to act as check on the passions of politics that drives the other branches.

Development of the law is a complex process, but the position you take argues that Internet expression can be censored because it's not literally produced by a press.

I understand at least to a degree the Constitution and the complex history around it. I believe the judges were right to assure the right of people like Ms. Rice to vote. Previous to the court's rulings the states were free to erect various blockages.

Undermining this was one reason why so many condemned "judical activism."

Posted by: angela at November 29, 2005 05:33 PM

Yes, Angela. But that was then, and this is now. To say that a racist made a particular argument in the 50s as a rationale for continuing with segregation does not mean that the argument has no validity.

I get the feeling you don't read newspapers, but just take it on faith that crime must have gone up because Clinton was president.

Must be your first visit here. Howdy.

Posted by: Attila Girl at November 29, 2005 06:35 PM


The "crime wave of the 90's" referred to in the piece must have been the Clinton administration. Of course it wasn't part of decline in the rate of crime because Clinton had his mits on the Justice Department.

I mean, wasn't this the bunch that produced a Surgeon General who thought that if we legalize illegal drugs, that crime rates would drop? Well, duh! If we legalize EVERYTHING that is currently illegal, then crime rates will DISAPPEAR!

Clinton was a banana republic thug.

Posted by: John at November 29, 2005 06:51 PM

I personally think that it had a lot less to do with Clinton and a lot more to do with the boom in crack cocaine. But, hey—that's just me.

Posted by: Attila Girl at November 29, 2005 07:42 PM

Re the crime rates, I assume we've all read Freakonomics. If not, drop everything and do so.

It isn't something to be "interpreted."

The problem with these kind of things is that the Constitution is always open to interpretation, by its very nature. It was open to interpretation the day it was written. It was a fudge at the time, even as the Founders stood up from the table. The first arguments about what the document meant broke out in no time at all, among people who drafted it.

Let's just take one example: The Constitution does not provide the Supreme Court with the power to strike down laws that conflict with the Constitution. That power is not enumerated anywhere. It's case law: Marbury v Madison. If one is a original-intent type, one must explain how one wishes the Supreme Court from making sure that the only laws that are enacted are ones that agree with the Constitution at the time it was written, while removing the ability from the Surpreme Court to do so.

And one more: The First Amendment provides that Congress shall make no law "abridging the freedom of speech, or of the press." Congress makes a law making it to post political commentary on a blog. Does the First Amendment prohibit this? If so, how do you come to that conclusion without interpreting the First Amendment in terms of intent and logical entailments?

Posted by: Christophe at November 30, 2005 01:19 PM

Christophe - Clarification please? it looks like a couple of your words got dropped: one wishes the [SC] from making sure...

...Congress makes a law making it to post political commentary on a blog...


Posted by: K at November 30, 2005 03:23 PM

Christophe's a fast typist; you know how those people get. Try these:

"how one wishes to have the Supreme Court make sure"

"law making it illegal to post political commentary"

Posted by: Attila Girl at November 30, 2005 03:32 PM

What LMA said.

Fast typing and lots of coffee are a dangerous combination.

Posted by: Christophe at November 30, 2005 05:03 PM

I personally think that it had a lot less to do with Clinton and a lot more to do with the boom in crack cocaine.

And what caused the cocaine boom in the 90's? Could it have had something to do with the heavy-handed crackdown on Marijuana in the 80's? Sadly, I have to lay that one at the feet of Ronaldus Magnus.

Posted by: Desert Cat at November 30, 2005 07:01 PM

Well, there's the fact that crack was developed during that time period. But you could be right, if overzealous enforcement of laws that are kooky to begin with caused a market aberration, which was exploited by the purveyors of crack.

It wasn't just Reagan: admitting the irrationality of drug laws is still this strange taboo among politicians.

Posted by: Attila Girl at November 30, 2005 08:13 PM

Christophe - Here we see LMA's editor talent shining out like a beacon on a hill. Probably the only reason it took her nine whole minutes is because she'd wandered off to brew up some tea.

But the "strange taboo" thing? To me it's the only predictable, logical behavior. Other behavior is what would look strange.

Posted by: K at December 1, 2005 07:27 PM

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