Bush: A strict constructionist ... sometimes

Here's an interesting contradiction that I mentioned to my class on the presidency -- the Bush administration claims to support strict constructionist judges, yet its vision of untrammeled executive power relies heavily on a sort of inferential constitutional interpretation that it otherwise decries. (Think, for instance, about the constitutional basis for warrantless wiretapping, sweeping claims of executive privilege, fighting wars without a declaration of war, etc.) No one ever mentions this and I don't know why.

Comments

[joe5348]

Strict constructionism, as opposed to judicial activism has, and is, code for racism. The term really came into use by Nixon and was part of his Southern strategy. If I recall correctly, and I think I do, there was quite a reaction to forced busing and the further requirement that all states treat their citizens equally. It was too difficult to argue overtly for racism, strict construction and judicial activism were terms that sounded much better. Anyway, this is a good discussion of the term
http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_3.html

Joe

[some guy]

The "activist"/"constructionist" judge thing surprises me--those were specific technical poli-sci terms, confined to classrooms and academia. It was understood that a conservative could be "activist" and a liberal could be "constructionist" and vice versa. That it's somehow become part of policy-wonk and policy-geek discourse is a bit disturbing, because the meanings of those terms have been squashed into sound-bite size. It's a form of unspoken argument at this point, and i think that unspoken argument (along with tacit knowledge) is one of the key reasons the American public feels so isolated from its politics.

The latter half of the post illuminates something else, I think--the constitution is 200+ years old. Much of those examples Brendan offers are made possible only by recent technological advancements. It belies a fundamental problem with 'constructionism': you can't "strictly construct" a 200-year-old document with regards to recent, unimagined advances--that assumes that life is fundamentally the same when we know for a fact that it isn't.