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American laws & courts

Judicial philosophies: More comments
on strict constructionalism, etc.

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Further comments on strict constructionalism:

Viewing the Bill of Rights and the rest of the U.S. Constitution as an enduring document means that the justices consider the society's values and the authors' intent during the era in which the text was actually written. When the original U.S. Constitution and the Bill of Rights (the first ten amendments to the Constitution) were written:

bulletWomen were excluded from many professions.
bulletWomen were denied the right to vote or run for office.
bulletSpousal abuse was very largely ignored.
bulletMarital rape was not recognized.
bulletMany African Americans were not allowed to marry.
bulletInter-racial couples were not allowed to marry.
bulletHuman slavery was an established institution.
bulletChildren were often subjected to extreme physical punishment,
bulletHomosexuals were jailed and sometimes executed.
bulletMarital divorces were severely restricted and rare.
bulletEtc.

On matters such as abortion access, the death penalty, equal rights for gays and lesbians, and other "hot" topics, there has been considerable change during the intervening centuries. However, today's understanding and is immaterial when it comes to interpretation of the Constitution as an enduring document.

Bruce Hausknecht, spokesperson for the Fundamentalist Christian group for Focus on the Family Action, said that conservatives hoped President Bush would nominate a strict-constructionist to replace Justice O'Connor, who resigned in mid-2005. He said:

"We are looking for a nominee who will uphold the Constitution as it is written, an originalist who looks at the text of the Constitution and interprets it in accordance with the original meaning given to it. What that means in today's terms is a judge who doesn't add to or subtract from the Constitution based on what he or she thinks is necessary for society today. The Constitution doesn't 'evolve.' " 1

Further comments on analogies to the religion:

A strict constructionist approach to the constitution and legislation bears many points of similarity to a literalist or fundamentalist interpretation of religious documents. Within Christianity, for example, many fundamentalist and other evangelical believers regard the Bible as being God's word: text written by human beings under the inspiration of God and thus inerrant (without error). They concentrate on the meaning of passages as they were written down by their authors thousands of years ago.

Perceiving the constitution and legislation as living documents bears many points of similarity to more liberal interpretation of religious documents. Within Christianity, for example, many believers view the Bible as containing attempts by the author to promote their religious and spiritual beliefs. Some of this material was of significance only for the late bronze-age, pre-scientific tribal culture in which the books were written. Some biblical passages are regarded as profoundly immoral if applied to today's culture.

Vincent Crapanzano, a professor of anthropology and comparative literature at the Graduate Faculty of CUNY, has written a book titled "Serving the Word: Literalism in America from the Pulpit to the Bench." It discusses literalism as a judicial and religious philosophy. 2 Publishers Weekly's review of the book states, in part:

"Crapanzano's main beef with these champions of literalism, be they ministers or judges, is that they have no concept of 'an openness to the position of the other,' which he sees as essential to democracy. ... In saying that no generation should be hampered by the strictures of a previous one, Thomas Jefferson argued that we must not ask a grown man to wear the jacket that fitted him as boy, but in Crapanzano's view, the literalists are trying to cripple democracy by cramming the present into the straitjacket of the past."

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Aaron Atwood, "President May Announce Supreme Court Nominee Shortly," Citizen Link, Focus on the Family, 2005-JUL-18.
  2. Vincent Crapanzano, "Serving the Word: Literalism in America from the Pulpit to the Bench," New Press (2001). Read reviews or order this book safely from Amazon.com online book store

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Copyright © 2003 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-17
Author: B.A. Robinson

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