William_T._Bianco,_David_T._Canon]_American_Polit

516 Chapter 14Chapter 14 || The CourtsThe Courts

strongest protection of the First Amendment. So much for “without deviation, without

exception” concerning restricting expression of the “views... [people] have”!)

Critics of strict construction also point out that the Constitution is silent on many

important points (such as a right to privacy) and could not have anticipated the many

legal implications of changes in technology in the twentieth and twenty-first centuries,

such as eavesdropping devices, cloning, and the Internet. Also, although the language of

the First Amendment is relatively clear when it comes to political speech, other equally

important words of the Constitution such as “necessary and proper,” “executive power,”

“equal protection,” and “due process” are open-ended and vague.

Some strict constructionists respond by arguing that, if the words of the Constitution

are not clear, the justices should be guided by what the Founders intended by the

words, a perspective called the original intent or originalist perspective. Clarence

Thomas is the current justice who is most influenced by this view, especially on issues

of federalism.

original intent

The theory that justices should

surmise the intentions of the

Founders when the language of the

Constitution is unclear.

Justice Antonin Scalia had a similar view, arguing that the text of the Constitution

should be closely followed and, if the text is ambiguous, justices should figure out what

the words generally meant to people at the time they were written. This view led Scalia

to some unpopular positions, such as his view that the Sixth Amendment provision

that “in all criminal prosecutions the accused shall enjoy the right... to be confronted

with the witnesses against him” applies even in the case of an accused child molester.

The majority of the Court disagreed and held that it was acceptable to have the child

testify in front of the prosecutor and defense attorney, with the judge, the jury, and

the accused viewing from another room over closed-circuit television because of the

potential trauma the child would experience by having to confront the defendant

face-to-face.^63

Those in the other camp are often described as supporting a living Constitution

perspective on the document (see Chapter 2). They argue that originalism or other

versions of strict construction can “make a nation the prisoner of its past, and reject

any constitutional development save constitutional amendment.”^64 If the justices are

bound to follow the literal words of the Constitution, with the meaning they had when

living Constitution

A way of interpreting the Constitution

that takes into account evolving

national attitudes and circumstances

rather than the text alone.

Mary Beth Tinker and two other

students in the Des Moines, Iowa,

public schools were suspended

for wearing armbands to protest

the Vietnam War. The Supreme

Court ruled in Tinker v. Des Moines

Independent Community School

District (1969) that the First

Amendment protected symbolic

political speech, even in public schools.

Mary Beth is shown here with her

mother and brother.

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