The Supreme Court decision at the end of this past term reinforced the ambiguity that liberals and conservatives have towards strict constructionism in the area of freedom of speech. They struck down the California law barring the sale of violent video games to children under 18 years of age. In 2008 they upheld the Protect Act which prohibits anyone from selling or distributing child pornography. Justice Antonin Scalia joined the more liberal justices in upholding this statute. I agree with this decision but why is child pornography more dangerous than violent video games. This dichotomy shows that freedom of speech is not strictly observed nor should it be.
Finally, strict constructionists have showed no trouble bending Amendments 5 and 6 with regard to the Guantanamo Bay detainees and other terror suspects. These amendments state that no one should be held and denied their liberty without a speedy trial except in times of war or public danger. The public danger argument could certainly be argued for directly after the 9/11 terror attacks when uncertainty reigned supreme. But indefinite detainments without trial after extensive time has passed is totally unreasonable. There is always danger. This exception was meant for immediate danger. The Patriot Act is another example where conservatives have stretched the elasticity of the United States Constitution in response to 9/11. Unfortunately it has also lessened many of the privacy rights of U.S. citizens because of warrantless searches and wiretaps.
The days before the United States Senate voted on Elena Kagan 's confirmation to the U.S. Supreme Court last summer consisted of much pontificating over how the Constitution should be interpreted. Very few conservative Republican votes were cast to confirm her. Most of the explanations for the nay votes were on strict constructionist grounds. This is an unfortunate and growing trend. Justices Antonin Scalia and Ruth Bader Ginsburg were overwhelmingly confirmed in past decades and they were very conservative and very liberal respectively. This illustrates my point that this process has become absurdly political and ideological.
The Senate has a very important responsibility to examine these nominees because they are lifetime appointments. It is also important to have an honest examination of how a nominee will interpret the United States Constitution. Senators and all leaders should examine their own views and be honest with themselves and the public in regards to what ideologies and opinions they really want from Supreme Court justices.
The Constitution clearly allows for elasticity to deal with new issues and rights that the founding fathers never envisioned. Liberals recognize and affirm this. Conservatives deny this yet argue many cases on elastic constitutional grounds. We are watching this play out again with the Arizona and Alabama immigration laws. Controlling the United States borders, immigration, and citizenship is clearly a federal power under the United States Constitution. But conservatives are once again stretching the Constitution to fit their viewpoint and further their political fortunes. This law requires Arizona police officers to enforce immigration law. Arizona has no power to do this under the Constitution. This is just another example of judicial restraint being thrown out the window when it suits conservatives. It is further evidence that exposes the vagaries of strict constructionism. Conservative judicial restraint is clearly a myth.