Republicans are full of shit, part 1a: strict contructionism

This should be in a larger piece about judicial nominees (part 1b), but I had to get this out because I saw some idiot on Jim Lehrer today talking about strict construction of the Constitution as the basis for Bush's selection of judges. What a load of crap. Bush and his crowd don't want judges who interpret the Constitution strictly. Rather, they seem to want judges who will promulgate this horseshit (and by that, I mean an assertion unsupported by historical evidence) about our polity having been founded on the Bible and the Ten Commandments. In case you had any doubt, I reject that interpretation of the evidence because, well, the evidence indicates that the Constitution, and before that the Articles of Confederation, were based on the writings of John Locke, the interpretations thereof and of history in general by Thomas Jefferson and James Madison, and a profound distrust of individuals with power. The Republicans seem to think that power is great, as long as one of their guys has it, but it's horrible if one of them (so far, the Democrats) has it. I think that a pretty good criterion for identifying a fascist is whether his support of an action by a president depends on the party to which that president belongs.

I should point out something obvious, before I forget. There are two ways in which a constitution might be written: as a list of all the authorities of government, from which an omission constitutes a lack of authority; or as a list of restrictions on the authorities of government, from which an omission constitutes authority. More simply: 1) "if it doesn't say it, you can't do it" or 2) "if it doesn't say you can't, you can do it". There is only one logical way in which to read the U.S. Constition, and that is as an explicit enumeration of the only authorities granted to government, outside of which government does not have authority. Remember that the Constitution was written without the Bill of Rights, which are amendments to the Constitution. Aside from several clauses that explicitly qualify legislative authority (Art. I, Sect. 9), the Constitution itself forbids the federal government from doing a few things:

-- depriving a state of sovereignty (Art. V)
-- using a religious test in granting offices or trusts "under the United States" (Art. VI)

The executive and judicial branches are not forbidden from doing anything -- so that means the President can do anything, and the courts can "legislate from the bench" -- but it is not logical, based on the writings of Madison and Hamilton, the Constitutional debates, and the language elsewhere in the Constitution, to assume such unlimited authority for the President and the Supreme Court. They are implicitly forbidden from setting policy by a positive statement ascribing legislative authority to Congress -- is it necessary, then, to explicit prohibit the President from passing laws? Obviously, no.

As to the clauses in Article I, Section 9 . . . you know what, I guess one might read these and say that Congress could pass any law not prohibited by this section. After all, the principal argument against the Constitution was that it did not have a Bill of Rights to prohibit the government from doing certain things. But remember Hamilton's argument against the Bill of Rights: he notes that the Constitution does not, for example, authorize the government to limit the press, so the First Amendment is not necessary. It might reasonably noted further that enumeration of restrictions of government might lead someone (like, say, Supreme Court Justice Antonin Scalia) to later disparage a restriction not there listed. Which is why we have the ninth amendment. So, fuck off, Scalia.

Bearing all this in mind, a strict constructionist on the bench might make the following rulings:
-- tossing out all narcotics laws, because there's no authority to prohibit production, use, or sale of any item. If there's any doubt, see the 18th amendment, without which alcohol could not have been criminalized;
-- tossing out the 1956 law establishing "In God We Trust" as our national motto, as it is as clear a violation of the First Amendment in its assertion not only that God exists but that Americans (must) believe in God (which is an implicit violation of Article VI);
-- tossing out the 1864 law allowing the currency to bear "In God We Trust", as above;
-- tossing out the 1942 law establishing the Pledge of Allegiance, as the Constitution does not authorize Congress to create a citizen's oath;
-- tossing out any law requiring an agent of government from leading recitation of the pledge: see above, plus the 14th Amendment, and the general understanding of the impressionability of children (we don't let'em vote, sign contracts, or have sex, so why do we think that they could make a reasoned decision about whether or not to follow along with adults we tell them to respect and listen to?);
-- overturning the conviction of any soldier who refused to deploy on orders of the President in the absence of a declaration of war by Congress, because the President is commander-in-chief only when the military is "called into the actual service of the United States" -- and the only entity capable of doing that is Congress. Soldiers who therefore refuse deploy in the absence of a Congressional declaration of war are not traitors, but patriots. I'll avoid following this line to its logical conclusion, because, well, it's too easy to find out where I live;
-- at the very least voicing opposition to the Congress' payment of about half a million dollars to two men whose only function is to pray (the Congressional chaplains -- although military chaplains can be considered an employee benefit to troops deployed far from their churches, I'm pretty sure there are houses of worship for each denomination in Washington, D.C.)

A strict constructionist would make rulings that would piss off the Democrats, too, but they're not the ones claiming to want a strict constructionist. As such, it is quite evident that on this issue, as on many others, the Republicans are full of shit.