Tuesday, January 10, 2006

Strict Constructivism Revisited

I've been thinking about the Weekly Standard column by Harvey Mansfield I referenced yesterday. In it, Mansfield, in defending the Administration's extralegal authority on wiretapping (and presumably whatever else the administration might feel inclined to execute), basically says that "the law is not enough" when carrying out the executive's powers.

Specifically, I was wondering how this fits with, or contradicts, that old conservative standby, the "principle" of "strict constructivism". You know that one, don't you? Strict constructivism is a sort of "letter of the law" construct conservatives rely on in attempting to deny basic Constitutional protections, like the right to privacy, which conservatives claim, can't be found explicitly in the Constitutional text, and which, as a result, should not be used as a basis for making judicial decisions or interpreting congressional legislation or state actions.

But Scalito/Cheney's "unitary executive theory" basically seems to suggest that the law is pretty open to interpretation, at least by the administration, and should mean whatever the executive thinks it should mean. This seems to fly directly in the face of "strict constructivism" as conservatives have advocated it.

Now, that conservatives would hold contradictory, mutually exclusive "principles", pulling out one, while discarding the other, as the situation warrants, probably wouldn't surprise anyone here.

All the same, what do you think of the Mansfield "law is not enough" line and the previously inerrant and infallable conservative "principle" of "strict constructivism?" Consistent? If so, how?

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