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Tuesday, 08 August 2006 06:41

Let's Hear It For Strict Construction, Part 1

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Democratic Ideas, IX: "Let's Hear It For Strict Construction, Part 1"
by Steven Jonas

The Georgite mission of Constitutional destruction is now out in the open through a variety of revelations. Serious concern with it is no longer the sole province of the Left. Mickey Edwards is a former member of the House Republican leadership, national chair of the American Conservative Union, and a founding trustee of the Heritage Foundation. In the July 31/Augst 7, 2006 issue of The Nation (!, p. 5), he said: "[Bush has shown] deliberate disregard of a law prohibiting electronic surveillance of US citizens without a court-ordered warrant. . . . [The] issue at stake is . . . the continued viability of the separation of powers, the central tenet in America's system of constrained government. . . . The concentration of power in the hands of a single chief executive, whether President or King, is an outcome neither the left nor the right should welcome. But with a President who assumes that all important decisions are his to make, . . . that may well be where we are headed." Unless, that is, the Georgites are headed off, and fairly quickly too.

Since that article was published, a bipartisan task force of the American Bar Association issued a strong critique of Bush's extra-Constitutional "signing statements" system. In my view, a key to Democratic victory in November and again in 2008 (if Republican cheating can possibly be overcome) is putting the restoration of Constitutional Democracy front and center as an election issue, in terms of how the President's depredations of it AFFECT YOU. The thoughts and observations presented here are offered in support of that position.

The Republican Religious Right (RRR) likes to tell us that Constitutional jurisprudence as conducted by the nation's courts has been all wrong since the time the Supreme Court started coming around to the support of the New Deal in 1938. This jurisprudence has, they tell us, been dominated by "activist," "liberal" judges who just "impose their own views on the law, in violation of everything good and sound." What is needed in applying the Constitution to the law, policy, and policy-making, according to the RRR, is a return to what they call the "Doctrine of Strict Constructionism." (The term "Original Intent" is also used by them.) This Doctrine can be defined as taking the Constitution literally, as assuming that its words have a plain meaning and that they should be followed in applying it to both the law and the structure and functions of government that it describes and defines. A bad idea, no? Well, in my view, no. It is actually a very good idea as I hope to illustrate as we move through this analysis, and actually one that the RRR ignores completely.

Let us begin with an examination of the views of Justice Antonin Scalia on the matter. The RRR in general and Pres. Bush in particular hold him up as their primary avatar of this Doctrine. So just how does Scalia formulate it? In the July and August issues of Inquirer, its Editor/Publisher Mr. Gerry Dantone considered Scalia's position on the primacy of "God" and organized religion in public life and what its relationship to the law should be. Proceeding from that foundation, it is useful to examine how Scalia himself views the Constitution, and indeed how he applies the Doctrine of Strict Constructionism to it. As Mr. Dantone showed, Scalia holds that "God" and organized religion should be at the center of public life, of government, and of Constitutional interpretation. Examining his many speeches, writings, and Supreme Court opinions on various aspects of this subject, it will come as a surprise to many observers that it is clear from his own words that in fact Scalia himself does not follow the Doctrine of Strict Constructionism. How can that possibly be, you might ask. He just beats the drum on the subject, doesn't he? Well, in his verbiage, yes. In his practice, no, as illustrated by the following examples.

In relation to the Constitution and its interpretation, the most important indicator of Scalia's non-adherence to the Doctrine is his oft-state belief in something he calls "Natural Law," standing above the Constitution. For Scalia (as documented in the Dantone articles referred to above) "Natural Law" means "God's Law." For a further example, consider the following words of the Justice, as quoted by Sean Wilentz ("From Justice Scalia: A Chilling Vision of Religion's Authority in America," New York Times, July 8, 2003). Wilentz wrote: "Beginning with a quote from St. Paul as his thoughts are represented in the New Testament, Scalia had this to say about the subject (2002): ‘For there is no power but of God [St. Paul is said to have said]; the powers that be are ordained of God. . . The Lord repaid -- did justice -- through his minister, the state . . . [This was the consensus] of Christian or religious thought regarding the powers of the state... That consensus has been upset, I think, by the emergence of democracy . . .' "

In his book Big Lies (New York: Thomas Dunne Books, St. Martin's Press, 2003, p. 99), Joe Conason notes: "Antonin Scalia, a conservative Catholic and Bush's favorite Supreme Court justice, declared in 2002 that ‘government derives its moral authority from God' and acts as the ‘minister of God.' Acknowledging that such theories of divine dispensation conflict with democratic ideals, Scalia added rather ominously: ‘The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it effectively.' Scalia's medieval view of government as divinely ordained, rather than as the expression of popular sovereignty, is utterly foreign to the founding concept of the United States." As well as to, as best as I can make it out (and perhaps I have missed something), both the Original Intent, of say James Madison, a lead author of the body of the Constitution, and Thomas Jefferson, a lead author of the first Ten Amendments, and the plain language of the document.

Then consider that more recently, Justice Scalia has come out with an even more original interpretation of the "Doctrine of Strict Constructionism." In a speech given in Switzerland in March, 2006 ("Scalia Unplugged," The Progress Report, March 27, 2006) the Justice allowed that he had already pre-judged the Hamdan case on whether non-US citizen Guantanamo detainees have any protections under the Geneva Conventions. Since they are the subjects of treaties to which the US is a party, the latter are part of the US Constitution.

Referring to Mr. Hamdan, Scalia told his Swiss audience that "if he was captured by my army on a battlefield that [referring to Gitmo and indefinite detention without any rights] is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." These are the words of a Justice who regularly accuses his colleagues on the Bench of reading things about personal rights and liberties under the Bill of Rights into the Constitution pursuant to "personal whim."

Obviously he feels that doing so is taking gross liberties with the document because the exact wording of a certain right or liberty is not in it. At the same time, according to him, making judgments about the Constitutionality of an Executive Branch action based upon the fact that his son was being shot at in Afghanistan is being a Strict Constructionist, even though on very careful examination I, for one, cannot find in the Constitution any words sanctioning the use of such a criterion for making judicial decisions.

Thus in practice Scalia goes against his own words. For nowhere in the Constitution are any such thoughts or principles, grand or picayune, to be found, either in its plain language or in any conceivable interpretation of it. He has told us on numerous occasions that there are no "inalienable rights of man," for the Framers the basis of Constitutional Law. According to Scalia there are only rights that are granted by God. Since God does not often speak to us directly, in practice that means any individual rights are only those granted by God's representatives on Earth, in accordance with what they think God's wishes are (that is unless He or She speaks to such representatives, like Antonin Scalia or George Bush perhaps, in private). "Natural Law," the "law(s) of God," are thus whatever Church authority, such as Scalia's apparent favorite, the Pope, or (heaven forfend) Scalia himself, happens to tell us they are. In reality, this, that is some "Natural Law" standing above the Constitution, is nothing more or less than the rule of man, not law. Again, although I may have missed it, I cannot find anything like Scalia's jurisprudence anywhere in the Constitution. Nor, by the way, can I find the word "God." And this, George Bush, Antonin Scalia and the rest of the Republican Religious Right, tell us is "Strict Constructionism."

To be continued.

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Note to the reader: On September 8, 2005 TPJ ran an earlier version of this column. A revised version of it was published in the November issue of the Long Island Inquirer (http://www.centerforinquiry.net/li/index.html), the monthly publication of the Long Island (NY) Secular Humanists. With their kind permission, parts of that version are used in what has become a three-part TPJ series.

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Steven Jonas, MD, MPH is a Professor of Preventive Medicine at Stony Brook University (NY) a weekly Contributing Author for The Political Junkies (www.thepoliticaljunkies.net) and a Columnist for BuzzFlash.