Quote:
roachboy: what the strict constructionists are after is a revolution in the common law tradition itself that they are dishonest about, that they hide beneath some absurd return to sources. which they aren't real smart about interpreting.
citadel: Well this strict constructionist is about getting out of massive debt and maintaining individual freedoms.
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non sequitor.
methodologically there's no transparency at all with a strict construction viewpoint. because the interpretations are arbitrary--and necessarily so--because they're predicated on some fiction of "original intent".
to get that fiction to operate, strict constructionists violate some very basic rules of the game they claim to want to preserve--they elevate the federalist papers etc to the status of the constitution itself. and they erase the space for precedent as an interpretive guide.
original intent means what conservative activist judges say it means. this in the name of preventing judicial activism, which is basically conservo-code for "decisions we don't like."
even if ultra-rightwing militia types dont like the current precedent-based legal system that the constitution they claim to defend put into motion, the fact remains that you can read law and read court decisions and find in them interpretive arguments concerning previous statute and constitutionality. and you--or a proxy--can appeal those interpretations. the mobility of case law presupposes interpretations. if you seriously believe in this fiction of "original intent" all that disappears.
what's funny is that an immediate consequence of strict construction becoming the legal philosophy of the land would be a constitutional crisis because the constitution is not written as the sort of document that the strict constructionists want it to be. look at the difference in the way the german constitution is written---civil law is made with an assumption that law can be fashioned to more or less eliminate the space for interpretation on the part of judges. it's a **fundamentally** different approach.
that's why these far right legal "experts" and pseudo-historians are funny---so long as they stay on the margins, far from power.