Tuesday, April 8, 2008

Strict Construction

The various ongoing debates about the expansions and abuses of executive power under the Bushies brought something important to my mind.

It used to be - and remains - that conservatives of all stripes love to run around waving the banner of "strict construction" of the Constitution (please note: many libertarians do this as well, but in a slightly - but significantly - different manner). "Strict construction" of course is also called "textualism" and "originalism" in different contexts.

In any event, conservatives often throw these words around as a way of arguing against all sorts of legal changes, usually along the lines of (incorrectly) asserting that strict constructionism would deny the right of gays to marry or (perhaps correctly, depending on your view of when life begins) asserting that it would deny the right of abortion. They also (correctly) have used this manner of Constitutional interpretation as a way of arguing against various federal government interventions in state affairs.

Not surprisingly, though, the "strict construction" method of interpretation is applied inconsistently, at best, to conservative pet issues. When strict constructionism cannot support their preferred outcome, they usually redefine the term so as to make it utterly devoid of meaning.

But even redefining the term "strict construction" to the most absurd degree does not explain how so-called "strict constructionists" can argue for a novel theory like the "unitary executive," or that the President is allowed to ignore the law whenever he deems doing so to be in the interests of national security. Of course, the fact that the "unitary executive" theory has never been heard of in American history until the Bush Administration does not appear to have crossed their minds.

So, conservatives, which is it? Are you in favor of a strict, literal interpretation of the Constitution, or are you in favor of a virtually unfettered executive branch free from any Constitutional constraints as long as the President declares the issue one of "national security," a fact about which he need offer no proof.