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.