Wednesday, September 14, 2005

Strict Constructionism

As I watched Texas Republican Senator John Cornyn bloviate, pontificate, and toss softballs to Chief Justice nominee John Roberts, I can't help but relate a case that demonstrates how the terms strict constructionism, judicial activism, and the bedrock phrase "legislating from the bench," can mislead.
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Boomer v. Atlantic Cement Co. - New York Court of Appeals, 1970

FACTS: A group of landowners, represented here by Boomer neighbored Atlantic Cement Co., a cement plant near Albany. Boomer and the other plaintiffs alleged injuries to property from dirt, smoke, and vibration emanating from the plant and filed a nuisance claim against Atlantic Cement.

HOLDING: The court reversed a lower court's ruling that awarded Boomer damages without an injunction (a judicial order to cease an activity). The court reversed this ruling because without an injunction against a nuisance, as in this case, the plaintiffs would be free to continue bringing suits against the defendant.
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To solve this dillema, the court devised a compromise. Rather than ordering the business to effectively shut down (which would have cost 300 jobs and the loss of a $45 million investment) until a solution could be found to the problem of the plant's severe air pollution, the court ordered permanent damages paid to the plaintiffs until the defendant - in a "good faith effort" - found and installed technology to eliminate or drastically reduce the damaging effects on the plaintiffs' use and enjoyment of their property.

Essentially, the court skirted a well-established precedent to protect a business that was not only causing a private nuisance to the plaintiffs named in the case, but also a public nuisance to the greater Hudson Valley. Additionally, the court, in its distribution of the award, bought off the plaintiffs, while leaving the company free to continue interfering with the use of property - both public and private - without the threat of damages. Atlantic Cement was not held accontable for the lasting and continuing damages it wrought on the effected area. Writing in the dissenting opinion, Justice Jasen argued that since this nuisance was harmful to the general public, it was therefore within both the court’s bounds of precedent and responsbility to protect the public from harm, and in awarding permanent damages rather than issuing an injunction, the court failed its duty.

Keep in mind, this is only a short case example from 35 years ago, and I am a very green law student. It is from a state court system, rather than the federal court system, and obviously is not a constitutional case. The dissenting view, however, is the strict constructionist view. It interprets the case within the long line of precedent (a.k.a. stare decisis). Republicans (and others) who rail against so-called judicial activism would view this dissenting opinion as an egregious infringement on the personal property rights of a private business.

People who consider themselves modern strict constructionists radically misjudge some of the fundamental and historical roles of our nation's courts. The recent decision upholding eminent domain for economic improvements is a good example. The US Supreme Court followed precedent and adhered to the Constitution. Yet the decision was lambasted by people on the right, the left, and in the middle. I'm one of those people. But the Court upheld the law.

I agree with so-called strict constructionists that judges should not "legislate from the bench." I do believe that the courts, in upholding the laws written in the Constitution and passed down through generations of precedents, may make decisions that compel policy. The courts are the arbitors between the push and pull of the legislative and executive branches on one side and the public on the other. Strict constructionism wants to make them puppets of the legislative and executive branches, thereby leaving the public powerless. Except, of course, for the power of our manipulative voting system.

*Note: Antonin Scalia and Clarence Thomas, two proponents of the strict constructionist ethos, have voted to overturn Supreme Court precedent more than any other justice on the Court today.

12 comments:

Ilya said...

Thanks for posting your class notes on the blog. Real profound.

xtrachromosomeconservative said...
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xtrachromosomeconservative said...

Piedpiper, you have conflated strict constructionism with observing precedent. But, in fact, isn't the case that a strict constructionist believes in a narrow interpretation of the constitution and would thus be compelled to vote to overturn a precedent they have deemed unfaithful to the constitution. Scalia and Thomas have voted to overturn precedent precisely because they found those precedents to be based on a broad construction of the constitution. As to this notion that the strict constructionism defaults the judiciary to puppets of the legislative and executive branch, that is a specious argument. For instance, a strict constructionist reading of the constitution arguably would hold that using eminent domain to transfer private property from one property owner to another is in violation of the public use clause and is thus unconstitutional. In which case, a court ruling that such a taking was unconstitutional would be striking a law enacted by a legislature and signed into law by the executive branch. Unfortunately, in reality the reverse happened in Kelo v. New London, the court was deferential to legislatures, and interpreted the public use clause in a broad manner and functioned more closely to your "puppet."

PiedPiper said...

Whatever, Richard.

And Ilya, I will include my abbreviated class notes when I darn well feel like it. Need I remind us all of a certain stool sample known as "President Bush's Siren Song"?

Ilya said...

So, in your book, one long post deserves another? I would be a typing contradiction if my objection was to the length of your post rather than the - Ahem - content.

archduke f. f. said...

Pieper, I never said anything, buddy. I just checked the blog for the first time at 2:27 AM. I really don't think I'm a guy who gets a "whatever" for his comments. They are usually the awesomest.

xtrachromosomeconservative said...

As much as I appreciate your response, I suspect that your law professors may expect more substance.

PiedPiper said...

Ok, fellas. Call off the dogs. It's been a long week, and I'm tired. I apologize for th triteness, chaps. Cheerio.

PiedPiper said...

Archduke - when I refer to personally, it will be as Maff. Richard is also the persona non gratis of Xtra.

xtrachromosomeconservative said...

"I do believe that the courts, in upholding the laws written in the Constitution and passed down through generations of precedents, may make decisions that compel policy." Flesh that one out for me, how do these decisions compel policy? I don't necessarily disagree, just curious as to what you mean.

archduke f. f. said...

Good to know, pieper. Sorry for getting all huffy and calling myself the awesomest.

Nice to meet you, Richard; we share a name. That name being Richard.

xtrachromosomeconservative said...

That's lovely. Can I call you dick. I guess i can stop deleting my comments when I inadvertently refer to someone by their given name as opposed to their label, blog name, nom de plume, or whatever you call it.