Politics, and ''Strict Constructionism''

I've been engaged in some Internet wrangles here and there on the issues of the upcoming Presidential election. Generally, these wrangles get to be a whole lot like the old flame wars of Usenet, generating much more heat than light, and are of little benefit to any one or any cause.
Yet once in a while I get drawn in. probably foolishly.
One of the issues that's banging around here and there deals with the stands that various candidates might take. Some of those stands are principled stands, some of them are ''politico-speak'', meaning they sound like a strong stance for a principle but, when examined, are mostly fluff, or they don't mean what you think they mean.
One of these terms is ''strict constructionist''. Some of the Republican candidates, notably Rudy Giuliani, proclaim the intention to appoint ''strict constructionist'' judges should they be elected.
So, I wrote,

'.. we need to define ''strict constructionist''. A true-to-the-Constitution judge would recognize that the Court is supposed to be a passive referee, NOT the ''Lawgiver'' to the nation. And would recognize that 80-85% of federal activities are unconstitutional. Would immediately overturn Roe as wrongly decided, to heck with the pernicious bowing to stare decisis. Would keep the federal courts at ALL levels out of issues that properly belong to the States, or the Executive and Legislative branches. Would return to the proper, weak role, in other words.
Now, pause for breath. Does anyone really believe that's what he means?? Or does he mean ''we'll bow to existing bad decisions and attitudes, but promise to not get much worse very fast''?? 'Strict constructionist' seems to be politico-speak, sounds impressive but means little. I want Originalists. I don't trust Rudy to do that. Do you?

There was a posting on a great web site, the Evangelical Outpost, this week that got into just this issue. He was responding to a post and responded the link is here.

And this illuminates part of the problem Politicians use politico-speak because they perceive that by fogging some issues, that potential supporters will read the terms to mean what they hope they mean. The 'strict constructionist' phrase is a great example.
If you were to read the Constitution, and the debates and discussion that surrounded its creation and ratification, you would not find any support for the monstrosity that now squats astride our nation that is titled The Courts. None. The courts were envisioned as relatively passive referees. More a court of Common Pleas, with a few levels of Appeals courts. Not by any means the Court of St. James, not the creator of law, not the real Lawgivers. The weakest branch of government, in fact and in intent.
Fast forward about 225 years and what do we see? We see that national elections are now contentious in new ways, as the fight gets to be about who will be empowered to appoint and to confirm appointees to the Courts. As if our civil order had morphed into this: all our elections are simply to set in office a further level of Electors, who in turn appoint the real power in the land. Read the Constitution again. Find support for such a thing. Take your time. You'll be a while, because it's not there, has never been there, and such a thing was never contemplated.
And that is why the issue of ''strict constructionism'' gets to be an issue. Because we don't have good agreement about what the term really means. And it's important. It's important for a lot of reasons, but one of them is that it's about useless to attempt useful conversations when we don't have common understanding of the meaning of the words being employed. And because sometimes meanings are left vague in order to prevent that very clarity of meaning.
All of that being said, let me propose a term, and then describe its meaning.
Let me propose the term ''foundational'' and the phrase ''foundational judge''
As for the description, let's try these phrases:

• a foundational understanding of the Constitution and of Constitutional Law is one that John Jay would agree with
• a foundational understanding of the Constitution and of Constitutional Law is one that both the Federalists and the anti-Federalists would have been in general agreement with
• a foundational understanding of the Constitution and of Constitutional Law is one that recognized the uniqueness of America, her history, culture, institutions, and laws, and rejects any and all attempts to modify this understanding through appeals to the laws, history, culture, and such of foreign nations. It also rejects such appeals to international law as superseding the US Constitution and US laws.
• a foundational understanding of the Constitution and of Constitutional Law is one that recognizes the limitations of the Courts, and recognizes that the basis of US law is the Constitution, the federal statutes, and that findings of a court in a particular matter do not outweigh the actions of the other two branches of government acting in concert.
• a foundational understanding of the Constitution and of Constitutional Law is one that defers to original intent, it does not presume to reinterpret the Constitution to be more ''relevant'', recognizing that this is the exclusive province of the Legislative Branch.
• a foundational understanding of the Constitution and of Constitutional Law is one that rejects utterly the foreign notion of 'Common Law' as superior or even equal to statute, that rejects the notion that the ruling of a court is in any way to be construed as law binding on any other parties other than those in a particular case.
• a foundational understanding of the Constitution and of Constitutional Law is one that promotes humility of sitting judges, and expects that their tenure on the bench should be limited, not a lifetime position.

Others may take issue with any or all of these, propose additions, or propose an alternate phraseology. They are welcome to do so. Invited in fact: I am a poor-but-honest engineer and amateur Bible teacher, not a jurist nor a philosopher. And certainly not the wisest person who ever lived. Yet it is clear to me that the current situation is insupportable.
Roe v. Wade, Kelo, and some others are just terrible and travesties, certainly not advertisements for the wisdom or legitimacy of the Courts. Unless and until they are both overturned, and safeguards put in place to prevent future egregious assaults upon the nation, the country is not safe.
As I have said elsewhere, the American Revolution was fought at great cost in large measure to remove us from the unaccountable rule of kings, princes, dukes, barons, and the like. We most assuredly did not do so, and then convene a Constitutional Convention in order to substitute instead the rule of judges at any level. Pretending otherwise is a lie, and pretending that the current state of events is proper and intended is a lie as well. We need to pitch it out.