Bush’s liberal legal philosophy

December 13, 2005

If there’s one thing we know about the president’s philosophy about the Constitution, it’s that he loves strict constructionists. None of that “the law evolves” stuff for Bush; the president, like all good conservatives, claim that “originalism” — the Constitution should be interpreted as the Founding Fathers intended — is the only way to go.

The opposite of this belief, of course, is the notion of a “living Constitution” that develops and changes with society over time. Slate’s Dahlia Lithwick recently joked that conservatives view this approach as “judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want.” Indeed, Jonah Goldberg wrote earlier this year, “A ‘living Constitution’ denies us our voice in this regard because it basically holds that whatever decisions we make — including the 13th, 14th, and 15th Amendments — can be thrown out by any five dyspeptic justices on the Supreme Court.”

That’s why it came as something of a surprise when the president shared his thoughts with NBC’s Brian Williams yesterday on constitutional philosophy.

Williams: Have you ever entertained the thought, Mr. President, that Iraq’s natural state may be three separate pieces, three separate nations?

President Bush: No, I haven’t. I think — I know it will be united based upon, you know, kind of universal principles, the ones I outlined in the speech, freedom to worship, rule of law, private property, marketplace, all bound by a constitution which the Iraqis approved, and which the Iraqis will improve upon. And, you know, we improved on our own Constitution. In other words, it’s a living document. (emphasis added)

In context, it seems Bush was probably referring to the Iraqi constitution, which raises a different question: the president thinks Iraq should get a living constitution but we shouldn’t?

While I have no great respect for Bush’s capacity as a legal academic, I don’t think that what he’s saying here is inconsistent with a conservative approach to constitutional construction. He does seem to be referring to both the U.S. and Iraqi Constitutions as “living” documents, but my interpretation is that he’s suggesting that these documents are improved upon by amendment, not by shifting interpretations of the original text.

It’s a bit of a straw man to characterize the conservative approach to constitutional interpretation as insisting that the Constitution can never change at all; rather, their philosophy is that new constitutional provisions should be passed as amendments by democratic means rather than by reading existing constitutional provisions as providing for measures that were not intended by the original drafters. Aside from some far-right cultist groups who believe that the original U.S. constitution was inspired by God and that all subsequent amendments are deviations from the divine plan, no one argues that the Constitution is not capable of adapting to evolving social circumstances by the process of amendment, which is all that Bush seems to be referring to here.

  • Bit of a reach CB,

    we AMEND our constitution. Thus it lives.

    That’s a bit of a difference from changing the meaning of ‘Cruel and Unusual Punishment’ with every generation. Which is what bugs conservatives.

    Of course, if you went back to original intent and strict construction, the law of the land in 1789 about abortion was that abortion into the 2nd trimester was not illegal (Enlish Common Law). It was the AMA (yes, American Medical Association) that tried to outlaw abortions in the 1840s. So, you know, Roe vs Wade is a LOT closer to original intent (as if any of the founding farthers would have had the gall to try to outlaw abortions in the Eighteenth century) then the legal climate between 1840 and 1970.

  • Bit of a reach CB

    Well, I was sort of hoping this would be a tongue-in-cheek kind of post. Maybe the humor didn’t quite come through….

  • He doesn’t know Jack diddly about the Constitution. This is the guy who thinks we should all believe that God the Father formed a man out of dirt and woman out of that lump of dirt’s rib.

  • Well, I was sort of hoping this would be a tongue-in-cheek kind of post. Maybe the humor didn’t quite come through….

    Ahhh! Humor 😉

    Unfortunately, George Bush is so lacking in clarity of thought that irony just does not apply to his malaproprisms.

  • James, on what basis do you think that all Bush is saying here is that ammendments are fine? that doesn’t make the constitution a “living” document: it makes it a dead document that periodically gets revised.

    i mean, i understand that probably, in his heart, Bush doesn’t think that a “living” constitution is what he favors, but still.

    Meanwhile, James/Lance, would you care to tell us what these words mean?

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    How about these?

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Or maybe these?

    No Money shall be drawn from the Treasury, but in
    Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

    Or perhaps these?

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    The idea that these words were all frozen in time, and that the authors of those words knew precisely what they meant and couldn’t imagine that any future citizen of the United States would think differently about the meaning of terms like “unreasonable” or “time to time” or “necessary and proper” or “promote the general welfare” has never, at any moment, made any sense whatsoever, and i do know what those words mean!

  • Howard,

    I don’t think that Lance or I intended to defend an originalist philosophy of constitutional interpretation. What we were saying was that, from the context of his comments, it was clear that Bush meant that the U.S. constitution is “living” in the sense of being able to adapt to changing social circumstances by amendment, not in the sense of interpretations that evolve over time as the “living Constitution” school of judicial philosophy advocates. I’m well aware of the shortcomings of the originalist approach and do not profess to be an advocate for it, but that was not the point of my post.

  • In the tradition of the Patriot act I think he is refering to the need to amend the 1st. Protesters and activists are not what our forefathers had in mind when they erected the Constition.

    At the same time I think the President like most Americans understands that the 2nd amendmant needs to be expanded. Children, felons and animals will need to be able to bear arms, especially with the bird flu and the Chinese coming for them.

  • I actually don’t believe Bush is thoughtful
    enough to understand the nuances of what
    he said. It’s why he needs to be so carefully
    stage-managed. He’s likely to say something
    off the wall at any time on his own. Probably
    his handlers want to tear their hair out
    sometimes, never knowing what he’s going
    to say when speaking spontaneously.

  • “Or perhaps these?

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    Well, according to Judge Alito, this means that a warrant that does NOT specify the physical search of a 10 year old girl but has stapled to it an affidative that did mention ‘other people’ to be searched, can be reasonably construted by a police office that the 10 year old can be searched, and that the police officer should be protected against civil liability for such search, even though the search was not listed as part of the warant.

    -I-, on the other hand, would have supposed that an experienced police officer could have typed “see attachment” on the warrant form and listed the father, wife, daughter and other persons found on the premises as individuals to be searched on another piece of paper.

    So you tell me what it means.

  • Ah, Zach,

    So right, Bush wants America to be like Iraq, where they only restrict the carrying of AK-47’s on election day!

  • “Animals can’t bear arms….. they lack the opposable thumbs.”

    If they can mount a camera on a pengiun then all they need to give animals weapons is a neuralogical interface that they train the animal to use to fire the weapon.

    Of course, I don’t know how well they could point it.

  • “Lance, that sounds a lot like the ‘armed’ dolphins that were set out to sea by Katrina!!!” — Gridlock

    This begs a reply, but I don’t know what it is 😉

    I can just see Wayne LaPierre’s next mailing:

    If Dolphins and Iraqis can be armed with semi-automatic weapons, why can’t Americans?

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