This man wants Crackpots on the Bench

As I watch the Republican debates, I am annoyed whenever a candidate, usually Giuliani, says that as President they would nominate "Strict Constructionist Judges" to the Supreme Court.

This is ridiculous for two reasons; first, Strict Constructionism is a crackpot theory that practically no judges actually subscribe to. Second, no current Justice on the Supreme Court, with the possible exception of Clarence Thomas, would consider themselves to be a Strict Constructionist.

The idea of Strict Constructionism is that the Constitution should be read 'literally,' and judges should only make decisions that are in line with what the framers 'thought.'

First and foremost, this idea is rejected by the text of the Constitution itself. The 9th Amendment of the Constitution states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because the Constitution doesn't explicitly mention a particular right or freedom, that doesn't mean that right or freedom does not exist within the Constitution. Remember, the Founding Fathers were full of wacky notions. Mainly, they believed in Natural Law, the idea that certain laws pre-dated the Constitution. So, it was not necessary for the Constitution to include every right or freedom that it was intended to convey, for there were many laws which they assumed existed independent of the Constitution which conveyed certain freedoms and rights. Though Natural Law is no longer espoused today, it is important to remember that when we speak of what the Founding Fathers "thought," we have to do so honestly.

Second, Republican candidates would be wise to read a particular Supreme Court decision joined by William Rehnquist, one of the most conservative Supreme Court members to ever live. That decision stated: "This court does not subscribe to the simplistic view that constitutional interpretation can possibly be limited to the 'plain meaning' of the Constitution's text or to the subjective intention of the Framers." Thornburgh v. American College of Obstetricians.

Some conservatives point to Justice Antonin Scalia as a supposed 'Originalist' on the Court. But actually, in his book A Matter of Interpretation, Scalia rejects Originalism as being a crackpot theory. Scalia says 'The Constitution should not be read literally, it should be read reasonably.'

And finally, consider the words of a famous case, Wood v. Lucy; which stated: "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal." In other words, the idea that the text of the Constitution is locked in stone and has no meaning outside of its original historical context is ridiculous. And before saying foolish things such as: "The Constitution must be read as the original Framers read it..." you should remember that Rehnquist, Scalia, and about 99% of the other judges and lawyers in the United States disagree with you.