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There’s Never a Strict Constructionist Around When You Need One

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It occurs to me that anyone that supports the textualist, originalist or strict construction legal philosophies and supports George Bush’s program of illegal domestic spying is a hypocrite.

It would be very interesting to find Supreme Court Justice nominee Samuel Alito’s position on all this. Just asking him would be very enlightening… Will he answer? Or will he say the possibility he would have to rule on it compels his silence?

Somewhat later: The original post consisted of the above two paragraphs. I thought it clear enough, but it was suggested that I expand on it.

You could, for instance, add commentary on why you think supporters of Bush’s domestic spying are hypocrites.

That is SO far from the point, I decided expansion was necessary after all.

Let’s start with a non-partisan understanding of the terms; let’s use an article at law.com as a reference.

ORIGINALIST: Supreme Court Justice Antonin Scalia says he’s one.

"I am one of a small number of judges — a small number of anybody, judges, professors, lawyers — who are known as originalists," Scalia said in a speech last March. "Our manner of interpreting the Constitution is to begin with the text and to give that text the meaning that it bore when it was adopted by the people."

TEXTUALIST: Scalia says he is one of these, too. He equates it with originalism: taking the Constitution’s words at face value without trying to figure out the drafters’ intentions.

"If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words," Scalia said in a 1996 speech. "I take the words as they were promulgated to the people of the United States and what is the fairly understood meaning of those words. … The words are the law."

STRICT CONSTRUCTIONIST: Similar to an originalist or a textualist, a strict constructionist is one who sticks to the meaning of the words in the Constitution as they were used at the time of its drafting without reading too much into them.

Since the three terms refer to nearly identical concepts, I will refer to all three as “strict constructionist” unless and until someone can demonstrate a difference in practical effect between them.

Now, let’s look at the laws being invoked to attack and defend Bush’s domestic spying program.

The most significant attack is based on the Constitution, specifically the fourth amendment. What does a strict constructionist make of this? 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Remember, a strict constructionist must stick to the meaning of the words as they were used at the time of its drafting. There can be no consideration of intent.

The Foreign Intelligence Surveillance Act significantly loosens the limitation on the fourth amendment. Not only can surveillance begin immediately with judicial review within 72 hours, but during times of war the President can authorize such surveillance without judicial review for up to 15 days. An honest strict constructionist must recognize, however, that we are not at war. War is a specific legal condition which can only be instituted by Congress…that’s what the Constitution says, and strict constructionists can’t go beyond the words on the parchment. And the resolution authorizing George Bush to use force against Iraq does not qualify as a declaration of war. It is at best a Letter of Reprisal.

Strict constructionists would have to hold that George Bush broke the law.

Like all the other historical cases where we as a nation suspended the rights of our citizens in the face of war, this will ultimately be decided by the Supreme Court, and it will ultimately be judged a severe overreach. There are judicial philosophies that could lead to a ruling that George Bush acted within the law, of course. Those would be broad constructionism and intentionalism…both of which are specifically rejected by the Bush regime. Which leaves Bush in the interesting position of needed exactly the type of justice he explicitly rejected to declare his actions legal.

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About Prometheus 6

  • Good point.

  • alethinos59

    Good post P.


  • P6

    Thanks. The loss of blockquote formatting makes it difficult to follow, unfortunately. I’m glad the meaning got through.

  • Prometheus, this may be the best writing I’ve seen from you. The expanded version was JUST what you needed- breaking it down for us Kentuckians.

    You have made the point clearly and thoroughly. Whatever exact nuance you want to put on it, conservative jurists are supposed to be basically taking the US Constitution as it is written- not just making up penumbras and crap to justify stuff that isn’t within the national charter.

    As I would take it, this would mean that the SCOTUS should NOT be making up stuff that just isn’t there- such as a constitutional right to abortion. Equally, this would mean also recognizing the stuff that actually IS there, like the Fourth Amendment.

  • P6

    True on both your points. Keep in mind, though, that the lack of an enumerated right doesn’t mean no such right exists.

    There’s a single statement of intent in the Constitution. It says securing the blessing of liberty is one of the reasons the document was even written. I think abortion, as undesireable as they are, fall into the category of “the blessings of liberty” for most women. As such I think it’s one of the unenumerated rights the Ninth Amendment protects.

    Amendment IX – Construction of Constitution. Ratified 12/15/1791.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  • gonzo marx

    well done Prometheus!


    let me chase those birds away from yer liver for a moment

    one thing to note…Scalia scares the shit out of me due to a Quote form him about the entire “10 Commandments” bit this past year…

    from the bench, he stated “our Laws come from from God”

    let that sink in for a bit

    hopefully…all the recent revelation about this Administration will be properly investigatd and come before SCOTUS for just the points you are raising

    it will be quite fascinating to see hwo that plays out


  • P6, it warms my heart to see you invoking Amendment IX. Throw in #X for good measure. According to these two amendments, supposedly if the US Constitution does not specifically authorize it, then the federal government has no right to do it.

    You could reasonably take that to mean that there’s no constitutional authority to regulate abortion. But if you take it that strictly -and I would be happy to, then there’s no constitutional authority for the federal government to do stuff like Social Security and Medicare.

  • gonzo marx

    oh big Al…go out and tear up your Libertarian card and burn it with Nalle’s

    or has it slipped from your mind that the Constitution states quite clearly that NOT all Rights are delineated within it and the Bill of Rights, but that these Rights are implied and if needed may be added via Amendment

    SCOTUS is there to determine these very Issues, and the old separation of Powers bit adds in with “checks and balances” to ensure that NO Rights are diminished or infringed, but only delineated and added to if needed

    as for your fallacious assertation about abortion…is it now your contention that we have NO inherant Right to our own bodies?

    careful with that one…your own words so far provide one answer…i am curious as to what you think when asked directly


  • P6

    Amendment X – Powers of the States and People. Ratified 12/15/1791.

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Among the powers of the Congress of the United States of America:

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    …which means it may pass laws to secure the blessings of liberty for its citizens, which surely includes women.

    That is a lot of power though, power which desperately needs checking…as does the equal powers of the Presidency and Judiciary. That’s why Bush’s determination to unman the Judiciary (and now Congress and the Fourth Amendment) is dangerous.

    We know the standard for impeachment. In my opinion, it has been exceeded many times over. Seriously.

  • JR

    If it’s executive over-reach, you must impeach.

  • Bliffle

    One would think that the 4th is so well written and clear, both in the text of it’s words and in whatever constructions and meanings one might attach to it, as to be unambiguous. The verbal expression and the thought are in sync. It would seem that only a mischief-maker would seek to drive a wedge between the language and the intent.

  • Oh silly Gonzo. You act like I’m somehow against constitutional freedoms when I’m writing comments criticizing Bush for violating them. Where’d you get that.

    You’ve been around the BC block enough that you should know my general outlook on the abortion question. I favor legal abortion, though I would tend to consider it very wrong in most cases. But it is NOT a delineated right in the US Constitution, and claiming it as a “constitutional right” is intellectually specious.

    Likewise, I think we should do away with the taxation of income, but I wouldn’t support simply having the SCOTUS make up a reason to throw it out. It needs to go through the proper political process.

    The basic issue here is process. This is where my thinking might be described as veering from “libertarian” more to “conservative” in time, but I put more emphasis over time on following procedures. Essentially, I’m willing to accept some amount of bad decision making to safeguard the checks the whole system puts on all kinds of bad things.

    I think abortion should be legal, but I’d rather accept restrictions on abortion than to have the SCOTUS inappropriately usurping authority. If I accept them just making stuff up to suit themselves when it gives me the result I want, they’ll do it again and again to bad results.

    I would generally rather accept some poor results than to have the gates knocked down that restrict them from going hog wild.

  • gonzo marx

    ok big Al..i appreciate the clarification

    now, go outside and burn that Libertarian Club card…

    i have it on good authority that yer NeoCon secret decoder ring is in the mail in time fer Xmas…and a nice card signed by Rove and colored with Crayola’s by POTUS