Let's Be Strict with Strict Construction

by David W. Wise - March 18, 2008

Reprinted with permission.

Roy Moore, the former Chief Justice of the Alabama Supreme Court, became perhaps the nation's most controversial spokesman for "strict construction" and "original intent" in interpreting the Constitution in his celebrated stand on the display of the Ten Commandments.

The judge made two important points: First, that two clauses in a single sentence in the Constitution must be read together and not in isolation from one another. That, in other words, there are equal, inseparable and simultaneous prohibitions against establishment of religion and against impedingthe free exercise of religion. Second, Judge Moore is almost certainly correct in saying that what was being prohibited by the Founders was something akin to a North American version of the Church of England.

But in moving from the First Amendment to the Second, many of Judge Moore's religious fans abandon both consistency and the tight logic of his argument. For example, the phrase concerning a "well regulated Militia" is ignored while only the phrase "the right of the people to keep and bear Arms" is given weight. And yet, as with the First Amendment, these phrases are parts of the same sentence. Strict construction requires giving each word and phrase full weight. The sentence fragment, "a well regulated Militia being necessary to the security of a free State" makes no grammatical or logical sense without the rest of the sentence that is modifies.

That selective reading, however, is not the most flagrant omission. For here, unlike the case of the word "religion," the Framers quite clearly indicated what they meant by "Militia" in Article I Section 8, Clauses 15 and 16 of the main body of the Constitution. Here Congress, in very plain text, is given the authority for "organizing, arming, and disciplining, the Militia" and the states have the power of "Appointment of the Officers," and the "Authority of training the Militia according to the discipline prescribed by Congress." This Militia then, is clearly an organized military force. The Constitution, after all, must be read in its entirety – both Amendments and the main body together. It is not a menu where one may pick and choose.

As an historical footnote, and just a footnote since the text of the Constitution stands on its own and is abundantly clear, it is interesting to read in the parallel section of the Articles of Confederation, that "every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage."

Any discussion of the division of powers over the Militia (as opposed to the standing army and navy provided for in Article I Section 8, Clauses 12-14) seems arcane in the year 2008. And yet at the time of ratification, the power of the states vis-a-vis the national government and between north and south was not only important, it was the overriding Constitutional question for over seventy years until settled with the Civil War. Just as the states did not want the establishment of a national Church, nor did they want the Federal government to have disproportionate military power relative to them. That is what's going on in the Second Amendment. What seems like a curiosity today was a very real issue then, as the Civil War later proved. It is the right of the states to bear arms, not individuals, as Madison makes manifestly clear when he struck the minority's suggested language "body of the people" in the definition of Militia.

Strict construction and original intent mean just that. My point with this column is not to argue for or against gun control as a matter of policy preference, but to demonstrate that many of the same conservatives who decry "activist liberal" judges are no less activist when it suits their purposes. As the terms "strict construction" and "original intent" are tossed around, let's make sure they're not simply code words for a particular brand of activism.

David W. Wise was an alternate delegate to the 1972 Democratic National Convention, a full delegate in 1976, and a member of the Credentials Committee in 1980. He writes from Annapolis.