The Fallacy Of ‘Strict Constructionists’

As a strict constructionist of the Constitution’s literal text Amy Barrett should be asked how the Supreme Court has any power to review or reject any legislation such as Obamacare, because the words of the Constitution did not give the Court such power.

That power was seized by the Court in its early days, the first and most significant example of “creating law” strict constructionists claim to oppose.

Clearly, judicial review makes sense and has overall been good for our system of government but strict constructionists who accept it are hypocrites. Their flimsy house-of-cards political agenda, disguised as so-called philosophy, collapses on this question alone.


Author: craigcrawford

Trail Mix Host

59 thoughts on “The Fallacy Of ‘Strict Constructionists’”

  1. wouldn’t it behoove a real original constructionist to interpret the “arms” in the bearing arms brouhaha as meaning  knives, muskets or long guns?

  2. lest we forget talking about originals: it’s indigenous people day!!!

    not exactly “america the beautiful” and harder to sing than national anthem, but …

    Indigenous Peoples Day Song, sung by Mariana Harvey (Yakama) and Itsa Shash (Mexica/Indeh). The lyrics in this song came to me on my way to Seattle’s 2nd Annual Indigenous Peoples Day Celebration. The melody in this song is adapted from the Bearhead Sisters, ‘Take My Hand’ song. This was filmed on Duwamish land, by Patti Harvey.


  3. columbus dispatch:

    At one time, the Columbus Day parade in the city that bears the name of the explorer was big. 

    “It rivaled Red, White & Boom,” Joseph Contino, of the Columbus Piave Club, said, referring to the city’s July 4 fireworks extravaganza that draws thousands to the Scioto River waterfront.


    But by 1999, the parade was gone. Columbus Day remains a federal holiday, but the city of Columbus stopped observing it in 2018. Instead, city employees now are off work on Veterans Day.

    In July, Franklin County commissioners eliminated Columbus Day as a paid holiday for its agencies, replacing it with Juneteenth, which commemorates the end of slavery in the United States. Juneteenth – June 19 – marks the day in 1865 when Union soldiers told enslaved Blacks in Galveston, Texas, that they were free, two years after the Emancipation Proclamation.

    And on July 1, after protests following the death of George Floyd at the hands of Minneapolis police in May and cries to end systemic racism, the city removed the Christopher Columbus statue outside City Hall. The city of Genoa, Italy, where Columbus was from, sent it as a gift 65 years ago.

    Columbus Mayor Andrew J. Ginther said in June: “For many people in our community, the statue represents patriarchy, oppression and divisiveness.”  

    Today, 14 states plus the District of Columbia, and more than 130 cities across the country now observe Indigenous Peoples’ Day instead of, or in addition to Columbus Day. Many groups say Columbus’ exploration led to the genocide of native peoples and paved the way for slavery of Blacks by Europeans.

    The Council of State Governments said 21 states, including Ohio, observe Columbus Day as a paid holiday. Tennessee state employees have the option to take Columbus Day as a paid holiday.


  4. Poobah, originalists chap my butt. Apply the law as written, determine and apply the constitution consistent with the intent of the founders, as if they are in any position to do that. The originalists have written the introductory clause of the second amendment out of it and have written into the amendment an individual right that was never in it. The arrogance of the RW “originalists” is galling. 

    XR, I’ll serve in whatever position in your administration you believe will best benefit the American people. And if you want mean, I’ve got it in spades when I need it – you see, I don’t give a shit what people who would put their own interests ahead of those of the rest of our country think. 

  5. Stop calling it "packing" the Supreme Court That's GOP spin
    Adopting Trump campaign talking points, reporters are now regularly demanding Joe Biden reveal if he has any plans on “packing” the Supreme Court if he wins on Election Day — if he plans to expand the number of Justices as a way to offset what Democrats see as stolen seats taken during the Trump administration.
    The topic has taken on urgency as Republicans open up Supreme Court confirmation hearings today for Amy Coney Barrett. In a stunning bout of hypocrisy, they’re doing so just days before the election, as millions of Americans have already voted for the next president, and four years after Republicans proclaimed election-year confirmations were forbidden because voters needed to weigh in on such a pressing topic.
    Over and over we’re hearing urgent media inquires and commentaries about “packing” the Courts:
    • “Biden and Harris Need an Answer on Court Packing” (The Atlantic)
    • “Ruth Bader Ginsburg’s Death Revives Talk of Court Packing” (New York Times)
    • “How Democrats Could Pack the Supreme Court in 2021” (Politico

  6. I understand that for his October surprise D’ump’s decided to raise Leni Riefenstahl from the dead to produce his remaining campaign ads and Albert Speer to stage his next rally.  He thinks the miracle of raising them from the dead will confirm that Jesus has nothing on him and he liked what they did for Hitler and thinks they could do the same for him since people aren’t buying his victory over Covid as much as he thought they would. Probably not a bad idea.  ~~~

  7. Joe Biden's polling better than any challenger since 1936

    (CNN)Former Vice President Joe Biden is dominating President Donald Trump in the latest polls. No, the election is not over yet, and Trump still has a non-negligible chance of winning.

    But a look through history reveals that Biden is in a better position at this point than any challenger since 1936, when the first scientific polls were taken in a presidential race.
    The ABC News/Washington Post poll released on Sunday was the latest poll to indicate Biden’s strength. Biden led Trump by a 55% to 43% margin among likely voters. The poll was the third high quality national poll published this week that had Biden up by at least 10 points and above 50%. The other two being from CNN/SSRS and Fox News.
    Indeed, the average of polls has Biden at around 52% or 53% and up by somewhere between 10 and 11 points. This is an unprecedented position for a challenger with a mere 23 days to go until Election Day.

  8. E.J Dionne telling it like it is.  
    The GOP is lying its way toward expanding the Supreme Court’s conservative majority

    It’s bad enough that Republicans are trying to pack the courts with activist conservative judges eager to use judicial power to roll back nearly nine decades of progressive advances, from the New Deal forward.

    It’s even worse that Senate Majority Leader Mitch McConnell (R-Ky.) has barely tried to hide his hypocrisy and highhandedness.

    In 2016, he blocked a hearing and a vote for Judge Merrick Garland, who was nominated to the Supreme Court eight months before a presidential election. In 2020, McConnell is using the procedural equivalents of howitzers, Sherman tanks and smart bombs to force through Judge Amy Coney Barrett, nominated by President Trump just 38 days before a presidential election. It is an election that, on the current numbers, McConnell’s party is more likely to lose than to win.
    But here’s the topper: Republicans insist on lying about why they are willing to rip apart our institutions, destroy what little political comity we have left and undercut the legitimacy of the court itself.
    In election campaigns, Republicans are crystal clear in telling religious conservatives that they should vote for the GOP because the party’s presidents will name, and the party’s senators will confirm, judges who will overturn Roe v. Wade.
    Trump was very explicit (and, it turns out, rather prophetic) about this in an October 2016 debate with Hillary Clinton. “Well, if we put another two or perhaps three justices on, that’s really what’s going to be — that will happen,” he said of tossing out Roe. “And that will happen automatically, in my opinion, because I am putting pro-life judges on the court.”
    But a funny thing is happening now that Barrett, whose outspoken opposition to Roe is no secret, has been nominated. Republican politicians, looking toward the election, are acting as if “Roe” and “Wade” are obscure minor league baseball players.

    In the presidential debate from hell on Sept. 29, Trump bridled when former vice president Joe Biden said that Roe v. Wadewas “on the ballot” next month.

    “You don’t know what’s on the ballot. Why is it on the ballot? Why is it on the ballot? It’s not on the ballot,” Trump fumed. And then, repairing to words popular among those who are caught red-handed, Trump insisted: “There’s nothing happening there.”

    Vice President Pence, as is his way, tried to look upright in the vice-presidential debate by declaring, “I’m pro-life. I don’t apologize for it.” But he was apologetic enough not to touch the issue of what Barrett would do about Roe.


    Thanks, E.J.  

  9. Morning news headlines have just become: “Here’s All the Stupid, Self-Contradictory Shit Republicans Said Yesterday”.

    …a bottomless well.

  10. When Biden wins damn straight skippy I expect the Dems to pack the SC.  And no… I don’t expect them to say it during the campaign.  It’s fun to watch the gop squirm over it.  It’s fun to see how they feel about a question not being answered.
    as to the dumb reporters trying to get an answer out of Joe or Kamala…   fuck em’…

  11. agree RR. And watching media beat up Joe/Kamala for not answering packing question makes it tougher to argue they’re in the tank for them. But it would be OK to say we need at least another 50 circuit judges, because we do. Roberts would applaud that, the lower court caseload is ridiculously huge and growing.

  12. Very predictable opening statements in the Barrett hearing.  Ted Cruz appearing by Zoom?  I didn’t think they would allow participation virtually.  Certainly they’d need a rule allowing for him to vote if he isn’t planning to bring his hypocritical ass to DC by the time the ramrod vote occurs. Chris Coombs shamed Lindsey nicely – almost like pulling his pants down before the nation for all to see (sorry, unfortunate image).  Cruz tried to resurrect him from his hypocritical words, but alas, his words are his words and I figure Jaime just picked up another 1.2 a percent in SC if anyone there is watching.

  13. LP and every Dem running needs to be talking about healthcare and pre-existing conditions.   List what is considered a pre-existing condition and almost everyone over the age of 25 has  at least one.   Listen to Kamala. “They’re coming for you.”

  14. I have tried to write something here at least ten times since five am.  The problem is my outrage at the trump party (republican party no longer exists) can only be expressed so many times and now there is nothing more I can say.  At this point none of my thoughts make a difference to anyone.  Voting is underway, in spite of the trump party attempts to subjugate the votes to a deep well.  It is time for me to sit back, enjoy a bit of something while I stare at the television.

  15. Idiot LA Senator Kennedy reprising his Star Wars bar scene re: Kavanugh’s hearing.  He gives Louis Gohmert a run for his money, but that’s a high bar. He’s a moron, but you knew that.

  16. BlueBronc…   I hear you loudly and clearly.  That is why I’ve decided to try and ignore the noise for the next 3 weeks (notice I said “try”).  I’m not watching the hearing…  it’ll only piss me off…  life is too short to do constant pissed off.
    ps… if I go off the rails here now and between Nov 3…  just know I tried.

  17. Everyone needs to talk about the sequence the ACA faces.  Just 7 days after the election.  COVID Barrett will be terminating your health care.   Her first case at the court and she has already stated in her position which is to end the ACA.   

  18. A little something interesting has happened.  We know SFB sometimes goes all caps in his ramblings.  We saw the when he was allowed to touch his twitter tweet maker he shot of a high speed string of tweets in all caps.  Today the imbecile shot of a large number of tweets, many in all caps.  Last week he was high on steroids.  The question is whether he was high on something else when he would go on high speed, high quantity all caps tweets, including today.

  19. BB, who knows whether the even generates his tweets.  He could have any number of the MAGAts he’s surrounded with writing that drivel – Hell, they may have contests to see who can come up with the most offensive ones then he posts them from his phone.

  20. Back to the strict construction topic : yes, Mr Crawford, the Court Power of Review was extrapolated (or invented) early on. However, that Power depends on stare decisis. How does the nominee feel about stare ?

  21. BB, i agree it’s the Trump Party. traditional GOPers (especially those  lincoln proj people) need to call it that when asked if they feel they’ve betrayed their party because they’re endorsing joe like they were asked last night on 60 minutes.  they should have said it’s no longer the party of lincoln, no longer the republican party.

  22. It looks to me as though the 2d Amendment necessitates having a well-ordered militia*. Either that or the 2d Amendment might apply only to states that maintain well-ordered militias. 

    *That is to say, it may mandate well-ordered militias.

  23. Bleeding House seats ……………….

    SHEPARD, our election guru, has moved a few Republican incumbents’ seats toward Democrats in his forecast: Reps. ANNE WAGNER in the St. Louis burbs, JIM HAGEDORN in Minnesota and STEVE CHABOT in the Cincinnati area.
    OUR OVER/UNDER is Republicans taking a net loss of seven seats. DAVE WASSERMAN of the Cook Political Report pegged the losses at between five and 15 seats.
    HERE’S A QUESTION TO PONDER:Who in Republican leadership takes the fall if Republicans lose as many as 10 seats?

  24. Let the republicans eat each other until they’re all gone. Just because neoconmunists hate trump doesn’t make neoconmunism worth saving. Just because trumpettes hate neoconmunists doesn’t mean that any trumpette deserves to survive. I draw your attention to the words of Amalric, the bishop of Beziers during the Albigensian War.

  25. Fears of Biden presidency packing court shaping up as a closing argument for GOP Senate candidates arguing they must keep majority to stop him. All premised on their assumption Trump will lose.

    Could win them back some wavering moderates.

  26. Lots of money coming in to dems.  Not so much for the goopers.    People need to understand SFB is fixing the court to decide the election.  Good job Lindsay Graham. You’ll go down in history. Far far down

  27. More than 10% of Florida’s expected vote has already been returned by mail (twice as many Dems as Republicans) and computerized counting starts today, to be made public election night. Lock and load! 

  28. It isn’t like Amy the impaler has hiden her views.   She has shown who she is Phyllis Schafly jr

  29. So there will be two more super spreader events to track between now and 14 days from now to demonstrate SFB’s singular ignorance of the covid threat.  Do all the infected attendees get the Walter Reed/Regeneron top of the line treatment, or are they on their own? Hmmmm, let me guess ~~~~

  30. Was tRUMP in Wisconsin two or three weeks ago?  They have the ‘rona muchly.
    Has The Lincoln Project done an ad tracking the spread (and any deaths) following tRUMP’s ego rallies? 

  31. !!! trump Eats Babies !!!
    They take the foetus out of the mother and grind it up for the stem cells. Then, they roll the grindings into pills, and trump eats them in order to cure HIS Covid 19 disease, that HE caught through HIS careless behavior. But it’s okay, because HE can eat babies, ‘cuz HE’S PRO-LIFE !
    I’m Xrepublican, and I APPROVE THIS MESSAGE.

  32. Republican relative is afraid because Harris will take over and make Pelosi her VP.  Huh? Told her to stop watch Fox News.

  33. Just to slow things down a bit more, there is no straight party voting in TEXAS.  It’s not like a person would have to vote a straight party line, it was an option.  Republicans, pffft.

  34. D’ump’s words at his Sanford rally:

    “The cure cannot be worse than the problem itself can. The cure cannot be worse,” Trump told the Sanford crowd — many of whom were not wearing masks — referring to public health restrictions in many states. “But if you don’t feel good about, if you want to stay, stay relaxed, stay. But if you want to get out there, get out. One thing with me, the nice part, I went through it. Now they say I’m immune . . . I feel so powerful.”

    Translation- WTF, do whatever you want. 

  35. president kevorkian :
    Drink the kool aid and all will be well. Believe me.
    Masks will suffocate you. Hospital surgical staffs are all zombies. Masks killed them. Believe me.
    kim jung un is your friend. Believe me.
    Mexicans are terrorists. They spread deadly germs.
    Vote for me and save the Confederacy.
    I know more about Christianity than the preachers. Just last night I was reading in the Book of Armaments, Chapter II, about the Holy Hand Grenade of Antioch . . . .
    putin is your best friend. Believe me.
    I know more about women than the gynecologists do, believe me.

  36. To be clearer, if you take away stare decisis, you take away the courts’ support of 2d Amendment crazies, just so you can overturn Roe v Wade. 
    On stare decisis it’d be trade off : repubs would have choose between being anti-abortion or pro-gun. Of course, because once there’s no Roe v Wade, all the pro-lifer money dries up. So, the pro-gun nutters would win. Again. Then the rippers would never elect a presidency or a majority of either the House or the Senate again. Funny. Then the gun money would also dry up, or have to move to Bernie Sanders.
    Women and Dems wouldn’t take all this lying down, so to speak. People who would want to resurrect Roe, would start replacing the old & dying republican SCOTUS members with a majority of young, pro-stare, pro-Wade justices. Then, there go the guns and the pernicious fiction of ‘originalism.’

  37. We’re gonna need a lot more popcorn over the next four years.
    AND more prisons to house all the republican racketeers.

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