Strict Construction or Original Understanding?

Over at Left2Right, Don Herzog claims that conservatives worship at the alter of “strict construction” of Constitutional matters.

Strict construction means applying the language of the Constitution to what it straightforwardly refers to, not — here’s the connection — using it as a springboard to make stuff up.

You’re wrong from the get-go, Don. Conservatives don’t honor strict constructionalism. We insist on original understanding.

Put simply, the framers of laws have one chance to get their meaning across in writing. Then, the bill or the amendment goes before a body for debate. Those bills and amendments that become law leave a papertrail explaining what the legislators (or the people) understood the law to mean.

Therefore, we look not to the text of the law, but to the debate that ratified the law. We want to know what the people who approved the law thought about it at the time. If the debaters of the First Amendment understood the language to mean “a separation between church and state,” then that’s what it means. But we know from the records of debate in the various state legislatures and Congress (or Congreff) that the arguments that prevailed did not promote the idea of a wall between church and state, but a protection against Congress demanding taxes to support a national church, as was the case in England.

Nice try. You should read Robert Bork’s “The Tempting of America” for fuller explanation of original understanding. To be fair, Don later promises to slap away “original understanding” as if it were a polemic gnat.

(If you think that strict construction means originalism, that is, some version of appealing to the intentions or understandings of the framers or ratifiers, hold your fire: I’ll offer another post on what’s wrong with that view sometime soonish.)

I can’t wait.