For The Transcript

In a reported speech at Wake Forest University last week, John McCain reached out to conservatives with his vow to appoint only judges to the federal bench who agree to "strictly interpret" the Constitution. His promise embraces a favorite talking point of conservative members of Congress and others, who are fond of criticizing those federal judges who fail to strictly construe the laws passed by Congress.

The criticism is nearly always tied to some hot button topic decided by the courts, such as prayer in school or abortion. Now, Mr. McCain has taken the discussion beyond court review of ordinary laws passed by Congress. He wants the Constitution itself to be strictly interpreted by the federal judiciary.

Politics aside, saying the Constitution should be strictly interpreted is a flawed proposition. Taken literally, it presents an almost impossible challenge in light of the document's actual wording. The Constitution's language, without elaboration, instructs judges to guard the "privileges and immunities" of citizenship. It speaks of our guarantees with phrases such as "life, liberty or property" without further detail. It requires "due process of law" and "equal protection" and mandates the federal judiciary's responsibility to protect these fundamental rights. These word choices are the pillars upon which our constitutional rights exist. And yet, the words on their face are hardly capable of being "strictly interpreted" as written. Aside from establishing proof of his conservative credentials, it is disingenuous for Mr. McCain to suggest otherwise. Mr. McCain's speech told the audience that the framers of the Constitution would be amazed today. Perhaps not. It was their brilliance that opted for wording that defies strict interpretation, but has a breadth strong enough to survive beyond the age of its authors.

Mr. McCain's larger point was to condemn so-called judicial activists, and their lack of regard for, among other things, the Congress and the will of the people in decision-making from the federal bench. As the argument goes, any law, clear on its face, should be strictly interpreted and applied as written. Proponents of the view say that laws passed by the Congress represent the democratic will of the people which should not be replaced by an appointed (and not elected) federal judge with lifetime tenure. This viewpoint carries its own inherent fallacy and shows a naive understanding of the role and duties of an Article 111 judge under the federal Constitution. Simply stated, all laws, no matter how clearly written and how representative of the public majority's views, must still pass constitutional muster. This elementary premise is fundamental to the entire American structure of governance. Without this built-in safeguard, one can only envision where our country, subsisting on laws which represent the will of the majority, might be today. If laws clear on their face could by-pass the test of constitutionality, it is not far-fetched to conclude we might still be living with segregation, statutory bars against biracial marriage, prohibitions against the use of contraceptives, even by married couples, warrantless searches, laws supporting intolerable prison conditions and the like.

Sadly, year in and year out, too many of the influential voices among our elected Congress gain their status as lawmakers through the efforts of special interest groups, or on platforms that carry little concern for the non-majority's entitlement to privileges, immunities, liberties and due process.

If we as a society choose to look back over time, we see the cold reality that it has usually been the judiciary, not our elected public servants, who are responsible for a body of law that has preserved each generation's personal liberties, eliminated unjustified governmental intrusion in our lives, and fulfilled those constitutional promises found in the language of the document known as the Supreme Law of the Land. In this sense, judges may be acting as lawmakers, but only to enforce the higher law, without regard to the presupposed will of the majority at some precise moment in time.

Don Holladay, an attorney, lives in Norman.