Theme Thursday: Wind (aka Truth In Advertising)   6 comments defines “Windbag” as “an empty, voluble, pretentious talker”. further provides a definition “pretentious” as “full of pretense or pretension” and “characterized by assumption of dignity or importance”.  We round it all out by grabbing a formal definition of “pretense” as “the putting forth of an unwarranted claim.”

Ergo, a windbag is (among other things), someone who makes unwarranted claims, particularly those that may provide them with an air of dignity or importance.

Good ol’ Justice Scalia of SCOTUS (that’s shorthand for the Supreme Court of the United States) has been in the news recently, a kerfluffle involving privacy rights.  In a number of different venues, I’ve read a large slog of commentary regarding the jurist, and a number of people have brought up the concept of “strict Constructionist”… the idea that there are some jurists (the Hon. Justice Scalia included) who claim to be only interested in the absolute letter of the Constitution, and that this is somehow a reasonable default position for anyone who studies the law.  Conceptually, it’s sort of a nice idea; that the Founding Fathers did such a good job of writing the thing that every possible contest of law can be found to either comply with the Constitution, or fail to comply with the Constitution, and if it doesn’t you simply reject it.  If it’s true, though, it does sort of beg the question why you need to study all this law in order to be a lawyer, as the Constitution is not a terribly long document and can be parsed by anyone who has an acceptable level of high school English.

Now, I’m not a lawyer.  I’m certainly not qualified to call myself a Constitutional scholar.  This is one of those times when you don’t need to be an expert in a field to know that there is something seriously wrong with someone’s position… if you’ve studied some basic logic (yay, Math!).

Here’s why “strict Constructionist” is a bogus label, and thus anyone who claims title to the label is likely a windbag.

Question: how can you agree with strict adherence to a document that is not written explicitly and has linguistic conventions that are no longer in the vernacular?  Some people will state that the second is not a telling objection, since presumably you can study the historical context and come to a reasonable translation into modern language.  I personally think that this is at best a shaky position, but I’ll let it go, for now.

The first is really the most telling point; examine Article Six.

The first part states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”.  Seems pretty straightforward.

Ergo {the Constitution} + {Other Laws Made according the processes declared in the Constitution} + {Treaties} = Law of the Land.

But there is *no* provision in this article to state that {Treaties} must comply with {the Constitution}. Strict literalists usually operate on the assumption is that {the Constitution} trumps {Treaties}.  That’s not explicitly stated, however; instead it uses a simple *and* to join the two.  So one can just as easily say that the two principles are co-authoritative, that {the Constitution} doesn’t trump {Treaties} and {Treaties} don’t trump {the Constitution}.  In fact, one can draw upon the language of the Article itself in support of this position; the Article clearly limits {Other Laws} directly to those passed according to the process outlined in {the Constitution}, but makes no mention whatsoever of any limitations on the types of Treaties that can be accepted.

But *that* only makes sense if the procedure to ratify a {Treaty} is the same as the procedure to ratify {an amendment to the Constitution}, which is not the case.  By the Treaty Clause of Article Two, the President and 2/3rds of the majority of the Senate can ratify treaties, but Article V puts the barrier of amending the Constitution considerably higher.

So which is it?  We have to jump through hoops in order to amend the Constitution… unless the President and 2/3rds of the Senate are talking about signing something binding with another recognized country, in which case it’s perfectly fine?  Or we can’t sign Treaties unless they comply with the Constitution?  Well, that means that signing the Treaties is now no longer up to the Executive and 2/3 of the Senate, everybody gets involved in the party.  My God, a logical quandry!  This isn’t a theoretical quandary, either, examine Medellin vs. Texas.  Those pesky “strict Constructionists” (Hon. Justice Scalia included) sure engaged in some logical ninjitsu to avoid acknowledging that they were, you know, interpreting the Constitution.

They’ve changed

  • {the Constitution} + {Other Laws Made according the processes declared in the Constitution} + {Treaties} = Law of the Land.


  • {the Constitution} + {Other Laws Made according the processes declared in the Constitution} + {Treaties} = Guidelines for the Law of the Land
  • {the Constitution} + {Other Laws Made according the processes declared in the Constitution} + {Other Laws passed to operationalize the Treaty} = The actual Law of the Land.

Regardless of your position on treaties, executive power, and Constitutional amendments, you must admit that the two sets of bullet points above are not equivalent.  They are *not* the same.  The second set is clearly an interpretation.

Now, this last comment is purely conjecture (and I will gleefully admit that this is based upon my own biased observation that the Hon. Justice Scalia is something of a gigantic ass), but I suspect that his “strict Constructionist” position will interpret this logical quandry firmly in line with his own idea of how the country ought to be run, not any “Constitutional principles”.  If President Obama and the Democratic Senate signed some sort of Treaty with Mexico that, say, impinged upon Second Amendment rights of Americans (a current bogeyman of conservative talk radio that I myself would strongly disagree with), I will eat my hat if Justice Scalia doesn’t deliver some scathing denunciation as this being an attack on a foundational right of Americans… all the while waving the same “strict Constructionist” flag he would wave while approving the NSA wiretapping program, should that ever get anywhere near the Supreme Court.

Claiming to be a strict Constructionist is remarkably similar to claiming that you’re a Biblical literalist. You can’t be. The document is not internally consistent. You can only be a strict literalist or a strict constructionist inside your own interpretation of the document, which is by definition… ah, relativist.  Any reasonably competent undergraduate student in mathematics can run a truth table attack on the Constitution and show a number of gaping holes.  The label doesn’t mean anything, it’s just a feel-good term designed to make people think you’re not an “activist judge”… which is, in fact, just another competely meaningless label.

[edited to add]: Nothing in the above is meant to endorse or underwrite any of the positions offered.  My own opinion on Executive authority isn’t germane to the discussion.  I’m just pointing out that the label of “strict Constructionist” is a bunch of hooey.


Posted May 8, 2009 by padraic2112 in politics, Theme Thursday, Uncategorized

6 responses to “Theme Thursday: Wind (aka Truth In Advertising)

Subscribe to comments with RSS.

  1. “ further provides a definition “pretentious” as “full of pretense or pretension” ”

    Now what kind of dumb definition is this? I call it dictional goose chase because then you have to go look up pretense or pretension and it’ll probably have another meaningless definition causing you to look up yet another word. Basically the dictionary is just a large verbal maze…

  2. I agree with VE about the definition of “pretentious.” It reminds me of the little dodge I’d use on grammar school English quizzes. Whenever we were tested on definitions were supposed to have learned — I’ll use “procrastinator” as an example — I could fake my way through some of them: “Procrastinator.” (Ummm…) “One who procrastinates!” (Yeah, that’ll work!)

  3. Thanks for the invitation to your blog.

    Another complexity of the “strict constitutionalist” definition is that the phrase itself is meant in different ways.

    When, by a “strict constitutionalist,” one means that they will rule in favor of the law even if they disagree with it, since their opinions are not law, then I am in favor.

    Conversely, when one means that they are taking a 18th century document and relating it to things the writers could not have predicted, the “strict constitutionalism” can very well (but not always) be wind.

    Even the authors understood change and fallibility, so they made provisions for amendment.

    Allow me to give a hypothetical that may have been possible in 2000. During that year, one presidential candidate won the popular vote and another won the electoral college (debates about the true outcome are not rellevant, lest I start a firestorm). Further, election issues were brought before the supreme court. Hypothetically, if a justice was adamantly against the electoral college, he/she could have argued, under “one man one vote,” that the popular vote winner should be sworn in because it is the only count consistent with “one man, one vote.” The electoral college is weighted otherwise. Now, this would be hogwash, because the consitution is very clear how a president is elected. It doesn’t matter if all 9 justices and 90% of the country thinks it should be popular vote, until the constitution is amended, the electoral vote it is. Now, that is not to say the justices just support the electoral college, only that they must interpret the law (not write it).

    Okay, maybe that isn’t exactly what you were looking for, but I do find it troubling when justices on either side of the aisle substitute their opinions for the law, then build a justification.

    Intersting topic that has kept debates since the 18th century and should keep us busy for the next couple centuries as well. 🙂

  4. wow. my head hurts. happy tt. definitely a different take than any other. love all the different perspectives though.

  5. One question. Is the “truth in advertising/windbag” post directed at
    (1) the various blogs that use the term “strict constructionist” or
    (2) at the applications of such labels in the first place or
    (3) directed at Scalia for being a strict constructionist judge?
    If intended towards (1) or (2) then I completely agree. Strict constructionist is a label easily thrown about to oversimplifiy complex judicial decisions.

    If you’re categorizing Scalia as a strict constructionist, then I would have to disagree. From your post, its obvious you fundamentally disagree with Scalia’s opinions, however to classify him as a strict construction is a bit of a straw man argument. While he shows a great deal of deference for the Constitution he has never (not to my knowledge or understanding) advocated the type of ridged textual that is usually associated with strict constructionism. Scalia has even repudiated the strict constructionist tag on numerous occasions.

    I’ve read my fair share of Scalia opinions and dissents. While Scalia is undeniably a conservative judge his jurisprudence is nuanced and based on defensible judicial ideology. While I personally disagree with much Scalia’s opinions I’ve developed a begrudging respect for his point of view. In my personal opinion, labeling him a Strict Constructionist judge will only lead to an obstructed and fragmented understanding of his judicial tendencies.

    • (1) and (2). Actually, (2) is the most annoying, IMO. Lumping something under a tag that has been created solely for the purpose of burying nuance annoys the hell out of me.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: