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July 26, 2005

What does he mean by "Strict Constructionist"?

Buried near the bottom of a widely syndicated AP news article today on the contentious Defense Spending Bill in Congress was this jewel:

The White House says it will oppose any restrictions on the president's ability to conduct the war on terrorism and protect Americans.

This from the same White House which has repeatedly stated a fondness and strong preference for judicial "strict constructionists", which is widely understood to mean someone with a fundamentalist or literalist understanding of the Constitution.

Interesting how Bush talks out of both sides of his mouth when it comes to the Constitution. Nowhere does it grant him the kind of authority he seeks to exercize over issues of war and peace, as any intellectually honest "strict constructionist" would tell you.

The sad reality is that Bush had many accomplices in his quest to subvert the Constitution in this area. Namely, large majorities in both houses of Congress when they tried to abdicate their solomn Constitutional duty and obligation by voting to grant Bush a blank check to go to war with Iraq where, when, why and how he choose.

A strict constructionist reading of the Constitution, coupled with the reasoned commentary on the issue by several of the signers to the Constitution, reveals that their vote is not legally binding because they lack the Constitutional authority to give away their Constitutional authority.

The resolution purported to delegate to the president a power reserved to Congress by the Constitution in Article I, Section 8. But the authority to determine whether use of armed force is “necessary and appropriate” (quoting the resolution) “is fully and exclusively vested in the legislature... the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war” (quoting Madison, “Helvidius” 4, 1793). “... Congress alone is constitutionally invested with the power of changing our condition from peace to war...” (Jefferson, to Congress, 1805). The executive’s role is “nothing more than ... first General and Admiral,” whereas deciding whether to go to war is the legislature’s function (Hamilton, The Federalist, 69, 1788).

Hamilton? He's like Mr. Uber-strict constructionist. Yet Bush's express wishes fly directly in the face of strict constructionism.

In fact we know that this war is not Constitutional, the cowardice of the legislature not withstanding, because if it were then conscientious objectors would have no choice but to go to war. Yet, I work with a Marine Reservist who doesn't have to go because he is a conscientious Objector. He told me that if Congress formally declares war on Iraq then he'd have to go... and that he'd do so willingly because it would then be a legal war.

We're hoping to arrange an interview with this young Marine. He has agreed to be interviewed. Now we just have to hook up and do it. Stay posted for more...

Posted by Kevin at July 26, 2005 08:08 PM