E.G.

In this post, Don Herzog attacks the view he calls "Strict Construction."  Strict Construction is a view about the proper role of judges.  It says that judges ought to apply "the language of the Constitution to what it straightforwardly refers to," rather than use it as a "springboard to make stuff up."  Herzog’s view seems to be that Strict Construction is overly simplistic and impractical.  He provides a few examples in which some part of the constitution simply cannot be "straightforwardly applied" without doing some sort of interpretive work.  Apparently, we usually need to make something up in order to decide what the constitution is telling us.  For instance, here is the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And here is Herzog’s analysis of it:

Judges and other interpreters have to decide what every one of those terms means.  "Freedom of speech" has to be a term of art.  If you think it just means "speech," so that Congress is forbidden to abridge speech, you’ll have to swallow some remarkable implications:  no laws against commercial fraud, criminal conspiracy, price-fixing (an agreement to change prices is criminally actionable even if neither firm acts on it), and on and on.  So too, I don’t myself believe that "separation of church and state" is an illuminating abstraction, but you can’t rule it out as a sensible interpretation of the amendment by insisting that "those words don’t appear" there.

Strict Construction strikes me as the correct way to read a constitution.  I thought the whole point of a constitution was to encode basic principles before they’re needed so that the people in government don’t have to make them up.  The problem is that our constitution just doesn’t allow us to do that.  As Herzog says, Strict Construction, as applied to our constitution, gets us that the president has to be at least 35 years old; it doesn’t get us much further than that.   

I think this means that our constitution just isn’t a very good one.  It’s too vague in some places, and absurdly specific in other places.  It’s also extremely short.  It’s no wonder that if you take the constitution at its word, you’re not going to get enough information.  But that’s not a problem with taking the constitution at its word per se; rather, that’s a problem with the constitution itself, and its inability to be taken at its word. 

I take it that the standard view is that the vagueness of the constitution is a good thing.  On this view, an overly precise constitution would quickly become obsolete.  By leaving certain interpretive questions "open," then, the constitution allows us to continually "reinterpret" its meaning and to reapply it in new ways each generation.  But there’s a difference between abstraction and vagueness.  A suitable principle regarding freedom of speech, for instance, would need to attain a certain level of abstraction, so it would not be able to tell us whether this or that specific activity is to be permitted.  But  it would tell us how to determine the answer to that question for ourselves.  The constitution fails to do this.  "Freedom," "of" and "speech" all have meanings in English, of course; but those meanings are too vague to be expected to provide the right sort of guidance in deciding specific questions.  So in each generation, we are not simply applying the same principle, "freedom of speech," in new ways; we are actually making up new principles which each bear that name.  Of course, thus far in our country’s history, each made-up principle has been fairly reasonable.  That’s been lucky.