In recent decades, strict constructionists have scorned, as representative of the worst activist tendency of some judges, the language used by Justice Douglas (in Griswold v. Connecticut, which established the "right of privacy") about how "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
But Douglas's "penumbras" are quite cautious extrapolations in comparison with the Bush administration's assertion that the Constitution confers on the president, as Commander-in-Chief, such powers as to permit him to disregard the law of the land.
It is hard to see how even penumbras and emanations from such a description can take one even close to the virtually unchecked "inherent power" that Bush is now claiming.
The word "privacy" may not appear in the Constitution. But the 4th amendment does protect citizens against "unreasonable search and seizure," and requires that the executive obtain a warrant from a judge to conduct a search. But the Bush administration has conducted warrantless searches, disregarding not only that constitutional provision but also the Foreign Intelligence Surveillance Act (FISA) of 1978, which established warrants issued by a special FISA court the "exclusive" legal means for the NSA to conduct domestic surveillance.
This running roughshod over these legal barriers is now being justified on the basis of an alleged presidential power that is not to be found anywhere in the text.
And while the inference of a "right of privacy" does not contravene anything else in the Constitution, the Bushite assertion of this "inherent power" virtually nullifies the basic core of the Constitution itself: the system of checks and balances to protect against the rise of tyrannical power.
Strict construction indeed.
Living Document
Strict constructionists contest the notion that the Constitution changes with the times and circumstances, thus permitting judges leeway in construing what the text, written in the past, should mean in the present. It's OK, even most strict constructionists would agree, to expand the notion of the "press" to take into account the rise of new media (broadcast, internet) that use no presses. But, in general, the strict constructionist disapproves of the idea that changes in our situation can or should alter the meaning of the Constitution.
But the Bush administration argues that 9/11 changes everything, including the constitutional powers of the president. We are at war, they argue, and with the country in a state of war the president can do pretty much whatever he thinks necessary. They are now propounding a post-9/11 Constitution-- one that increases their powers and decreases citizens' rights in order to take into account the nature of our new enemies and of the technologies they use.
Is this strict constructionism in action?
The strict constructionists say that if we want to change the Constitution, we should go through the constitutionally prescribed ways to amend it. But the Bushite simply declare themselves to possess the powers they want -to ignore laws, to disregard treaty obligations, to violate provisions in the Constitution.
Is this strict constructionism in action?
Original Intent
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