Spun Construction

"Strict construction" and avoiding "legislating from the bench" are two common phrases to suggest the propriety of a narrow reading of the constitution, deferring to the presumptive wishes and intentions of the framers themselves. "Judicial activism" – an epithet commonly associated with liberal jurisprudence, cues concerns about liberal judges creating rights where none ought to exist, in the context of an overly permissive culture. From the conservative point of view, notorious in this regard is the right to privacy, the foundation for the Roe decision, a product of "penumbras formed by emanations…" rather than an explicit mention in the constitution itself. We have no comparable epithet for judges who show hostility to congressional regulatory authority. But, isn't that judicial activism – an assertion of judicial supremacy over our democratically elected congress, the most directly democratic federal institution we have? And, what strictly construed rights is the court protecting when it overturns Congress' regulatory authority? The rights of large private interests? If the word "privacy" doesn't appear in the constitution, where does the language supporting the rights of corporations, which didn't even exist in the legal form that we now apprehend them? What right is being violated by enforcement of the Endangered Species act, legislation whose legal foundations Roberts has gone farther in challenging than even the conservative administrations for which he has worked? Is that not an aggressive form of judicial activism?

...Whether we're talking about literal interpretation of the bible, a strict phonics approach to reading or a strict constructionist view of the constitution, the same thread runs through our national policy debates. The Conservative movement (which is not to say all conservatives) has launched a full scale war against any independence of thought, any effort to consider traditional ways of seeing the world in the light of a complex and ever-changing reality and has created the false impression that, in doing so, it has shown a fealty to things "as they really are" in order to obscure its own aggressive agenda for transforming reality. Rather than taking this nominee at his word, or suspending disbelief about the intentions of an administration whose every calculation is political in nature, it would pay to probe whether a coherent judicial philosophy, whether understood as a restrained judiciary or a strict constructionist view of the constitution, exists at all for Roberts.

[via The Gadflyer: Flytrap]