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Is This 'Strict Constructionism' in Action?

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As the president now tours the country to defend his warrantless spying on Americans, we get a meaningful glimpse into how much of a role principle plays in the Bush administration.

The answer is, not much.

Strict Construction

This president has spoken on numerous occasions about how a good judge should approach the Constitution and the law. "There is no more fundamental issue," George W. Bush has declared, "than to- making sure we have a judiciary of people that do not interpret the law from the bench, people who do not try to write law from the bench, people who interpret the law and not try to write it." "I'm going to put strict constructionists on the bench," he has repeatedly said. Judges should just apply the law as it is, and not "legislate from the bench."

Ever since the Warren Court of the 1950s and 1960s intensified the debate over how to draw the line between appropriate inference from the letter and the spirit of the Constitution, on the one hand, and judicial over-reaching on the other, conservatives have tended to argue that the duty of judges is to construe the text closely.

So when George W. Bush has spoken about appointing strict constructionists to the federal courts, he has seemed to be announcing himself to be a principled conservative, favoring a strict adherence to what the Constitution actually says, with due deference to what is known about the intentions of the people who framed it.

But we can now see clearly that when it comes to the exercise of his own powers, this president is the very opposite of a strict constructionist. This contradiction has been visible, in recent years, in several arenas. But never has it become so crystal clear as in the past month, as the Bush administration -with its domestic spying program exposed to the world- publicly propounding its supposed legal justifications.


True strict constructionists decry what they call "results-oriented" readings of the law, that is, readings in which the desired outcome comes first and then an argument is formulated to reach that conclusion, rather than just following the law where it leads.

But it seems that when it comes to reading the law, the Bush administration is itself consistent only in its pursuit of one result: namely, the removal of all restraints from the president, at the expense of the other branches of the government, of treaty obligations, and of the rule of law itself.

The president and his people, for example, declare that the Congressional Authorization of Force passed in the wake of 9/11 gives the president the legal power to conduct warrantless wiretaps on American citizens. But the law says no such thing. Not only are they not strictly construing the text, they are making an interpolation -from the authorization to wage war overseas against external enemies to the authority to conduct surveillance at home against American citizens""that would make the most results-oriented Justices from the Warren Court era blush.

Similarly with the Bush administration's use of torture against detained prisoners, in violation of the Geneva Conventions to which the United States is signatory. Here, one of the Bush administration's legal tactics is simply to redefine torture, away from its established meanings, to allow them to do as they please. Forget what the treaty says.

But the Constitution describes treaties -properly signed and ratified""as "the law of the land."

Is this strict constructionism in action?

Penumbras and Emanations

In both these instances, the president and his legal minions present an additional argument. In his constitutionally designated role as Commander-in-Chief, they say, the president has the "inherent power" to overrule and disregard any legal restraints upon him.

But here is the totality of what the Constitution says about the president's role as Commander-in-Chief: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

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Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. His new book -- written to have an impact on the central political battle of our time -- is (more...)
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