Much is being said in the Republican presidential debates about the need for strict constructionist judges. Giuliani says that. Thompson says that. Give us judges in the federal courts, they say, who will interpret the constitution literally, as the framers originally intended. Give us judges that don’t legislate their own views but enforce the views of those great men who founded this country.
Well, I think I agree. I think it would be a good thing, indeed. I think it would be a good thing to have judges who shared the framer’s view that it is the Congress and not the president or the president’s media outlets who declare war. We could use a little of the old tradition just now as the president and the flamboyant jingoists of commercial media set us up for a presidential war against Iran. The Constitution says that Congress, and only Congress, can do that. OK, let’s go back to strict construction.
Or what about the issue of a standing army: In 1688 a parliament in England threw out a king, James II, because the fellow insisted upon maintaining his own standing army. At the time of our constitution, 100 years later, the whole idea of a standing army was still anathema. Nobody liked it. Today, George Bush likes it, or at least he likes aircraft carriers, but I don’t think he is really a strict constructionist.
At the time James II was thrown out, in 1688, one the major complaints against him was that he picked and chose between the laws he wanted to enforce and those he wanted to ignore. Sometimes he would suspend a whole statute that had been passed by parliament and just not enforce it. George W. Bush does the same thing. He does not like the idea of being limited in his tortures so he just ignores the statute. Or he just does not want to trouble with a warrant to search all our emails so he just tells Congress that he will not get warrants when he does not want to. He doesn’t like habeas corpus because that would give the people in Guantanamo the right to come to court to ask why were they there.
Before our constitution, there were a whole lot of kings who did not like habeas corpus and so the framers provided that the writ can only be suspended in event of rebellion or invasion. A strict constructionist ought to tell the president about that. Right now there is neither a rebellion or invasion going on and anyone who says there is is making new law, just like Giuliani and Thompson say they should not do. And while you are at it you could advise the president about the constitutional right of bail for prisoners and the right to be represented by an attorney.
Another reason that James II got the boot was his habit of dispensing with certain laws that applied to his friends. It would be like George Bush commuting the sentence for Scooter Libby, or saying that he would not enforce affirmative action because it would damage his friends in big business. Or that he would not enforce the rule prohibiting aid to churches. King James hounded his protestant enemies just as George Bush has hounded democrats like Joe Wilson and Valerie Plame. James threw his adversaries into the Tower of London, of course, and Bush and only threw Valerie Plame out on the street, but the principle was the same.
There’s more: James tried to get his own supporters into parliament and interfered with elections in the villages of England. An alarmed opposition stood up to him. Now anyone who thinks that the election results in Ohio in 2004, or in Florida in either 2004 or 2000 were tampered with can really hope for strict construction. If paper ballots were good enough to get us Washington and Jefferson and Lincoln, the old days don’t look so bad.
The English deposed James because they took these abuses seriously and being a strict constructionist myself, I do too. Anytime you commute Scooter Libby and jail hundreds of Muslims I think you ought to go back and read the constitution.
So, it’s OK with me. Let’s get some real strict constructionists and get this country back to the principles it was founded upon. No more standing armies; no more presidential declarations of war; no more fiddling around with ancient legal principles like habeas corpus, dabbling in torture, or messing with our elections. Jefferson and Washington would not have liked all that, and I’m with them.