Issue #45
Last Update October 2, 2006
National Strict Construction by David Katz December 24, 2005 Supreme Court appointees have been evaluated over the past few decades by a disparate set of criteria. The religious right has two main yardsticks: abortion and inclusion of religion in governmental activities. Republican conservatives (especially those not in the religious right), with their focus on limited government, look for a strict constructionist; that is, a Justice that will adhere to the plain and literal content of the Constitution, relying on “the intent of the framers” where that content is ambiguous. Moderate Republicans and most Democrats look for a Justice that sees the Constitution as a living document whose words may be fixed but whose interpretation must change to fit the changing world. This debate over judicial philosophy is not an academic exercise; it has important implications for the safety, security and prosperity of our nation and the survival of the USA as a democracy. Of the three contending camps, Strict Constructionism most requires a careful reevaluation by its proponents. Until now, their focus has been limited to certain articles of the Constitution. Recent events require that this focus be broadened if the strict constructionist position is to have any coherence and validity.
In order to be consistent in the application of strict construction, Justices adhering to this philosophy must revisit several important Constitutional sections: separation of powers, states rights, declarations of war, the right of citizens to be secure in their homes and persons from unreasonable search and seizure, the right of habeas corpus, and the powers of the President as Commander in Chief. A look at the bankruptcy clause would not be amiss, either.
The historical background of the Constitution is key to understanding the intent of the framers, and thus the clear meaning of its words. The seventeenth and eighteenth centuries were periods of numerous wars in Europe and in the Americas. The prevailing political opinion was that war was an endeavor of kings, that the people generally were harmed by them, and that, if the power to make war was taken out of the hands of the head of state and invested in the people or their representatives, many wars would be avoided, without compromising the ability of the state to defend itself from foreign invasion. Star Chamber proceedings, in which secret indictments lead to secret trials and secret imprisonments were incompatible with a free republic and the security of its individual citizens, hence the Constitutional rights of habeas corpus, trial by jury and open proceedings in court. Imperial rule by decree led to separation of the legislative and executive branches, with judicial revue to keep both honest and in adherence to the Constitution. The law was not what the President said it was, but what the legislature and courts said it was. Nixon's statement, “if the President does it, it's not illegal,” is the very antithesis of our Constitutional system. Having tried a weak central government under the Articles of Confederation, and having perceived that experiment as a failure, the Founding Fathers sought to give sufficient strength to make the Federal Government effective, while providing checks and balances to prevent the unbridled exercise of Federal power. Finally, having observed the century and a half of religious wars that racked Europe, and the problems England suffered through with an Established church, the separation of church and state was specified to keep government free of religious sectarian struggle and allow freedom of conscience for citizens.
To be true to his or her philosophy, a Strict Constructionist judge or Justice must have greater concerns than whether the Commerce Clause has been stretched to give a Federal foothold in what might reasonably be construed to be a matter for the states; he or she must be concerned with the core of our liberties, and with ensuring that those sections of the Constitution that, more than anything else, define us as a free people, are not ignored and undermined. These are current issues of the utmost importance. A Strict Constructionist must pay attention to the Constitutional clause stating that only Congress has the power to declare war. The War Powers Act and the various resolutions authorizing force in Viet Nam, the Balkans, the Persian Gulf, Afghanistan and Iraq must be viewed from a Strict Constructionist standpoint and limits set on the Executive's tendency to usurp the war-making power, and Congress' tendency to give away that power to the Executive. The increasingly expansive Executive claim that people can be arrested without charges, held incommunicado, and denied judicial review must be disallowed by Strict Constructionists as extra-Constitutional and illegal. The immorality of torture is clear to all except the morally tone-deaf. The legality of torture should be examined by Strict Constructionists in the light of the prohibition of cruel and unusual punishment. If the intent of the Founding Fathers is clear anywhere, it is clear here. Finally, the right of the people to be secure in their homes and properties, and the right of free speech, must be the basis of a strict-constructionist scrutiny of warrantless wire-taps and other communication interceptions.
Libertarians to date have been largely missing in action as the Executive branch expands its powers and intrudes every more into our homes and our religious and political lives. Strict Constructionists, lawyers and judges, must live up to their philosophy, repairing the vast rents in our Constitution, or be branded as hypocrites.
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New York Stringer is published by NYStringer.com. For all communications, contact David Katz, Editor and Publisher, at david@nystringer.com
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