Representative Michele Bachmann's historical blind spots have been well-documented over the past few months. At a recent speech courting New Hampshire primary voters, Bachmann mistakenly placed the first battle of the Revolutionary War in New Hampshire instead of Massachusetts. While a relatively simple mistake, it was curious coming from a "Tea Party" candidate who puts so much importance on the Founding Fathers and the revolutionary era. More troubling was Bachmann's attempt to whitewash American history by claiming that the Founders "worked tirelessly" to end slavery, ignoring the facts that many of the Founding Fathers died as slave owners and that it took 80 years and a bloody Civil War to eliminate slavery from this nation. (More on this in a previous post.) Earlier this week, Bachmann waded into the related topic of the constitutional role of judges, with similarly embarrassing results.
In a post for the Daily Caller, Bachmann declares that she is a "constitutional conservative" and goes on to explain what that term means to her. Toward the end of the article, Bachmann quotes former federal judge Michael McConnell's statement that the Fourteenth Amendment does not allow the President to circumvent the debt ceiling, then adds,"[i]t's that philosophy -- a strict construction of the Constitution -- that I will look for in judicial appointees and that I will bring back to the executive branch." There is nothing wrong with Bachmann citing McConnell: he is a distinguished scholar who made solid contributions as a judge on the Tenth Circuit Court of Appeals. But Bachmann's "strict construction" label hardly fits McConnell, and is out of step even with conservative standard-bearers such as Justice Antonin Scalia.
In his 1998 book, A Matter of Interpretation, Justice Scalia called strict constructionism a "degraded form of textualism" and wrote that "I am not a strict constructionist, and no one ought to be." Scalia went on to argue that "[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Justice Scalia's views have been echoed and elaborated upon by many other brand-name conservatives who have sat on the federal bench in recent decades. To give just one more example, the late Chief Justice William Rehnquist once wrote that "[t]he framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live. "
Michael McConnell, Bachmann's model strict constructionist, has gone even further. In his 2002 Senate confirmation hearing, McConnell defended former Justice William O. Douglas's much maligned argument that constitutional rights have "penumbras," stating:
"I believe that every -- I think that every constitutional right carries with it a -- penumbra is not a terrible word. Justice Douglas is often mocked for the word, but it's not a terrible word. Every constitutional provision goes a little bit beyond the bare words. We have freedom of speech, but that also includes writing, and communicating through sign language, and it includes a whole -- and assembly and a lot of things as well as that."
So much for McConnell and "strict construction."
In reality, the phrase "strict constructionism" is not a philosophy at all -- at least not one accepted by any credible judge or academic -- but rather a code phrase for judges who make rulings that sit well with conservatives. As a lawyer, Congresswoman, and candidate for President, Michele Bachmann should be able to articulate a philosophy for choosing judicial nominees that goes beyond meaningless references to a theory that has been discredited by conservatives and liberals alike.
Representative Bachmann has been steadily improving in the polls, but it seems that the more she talks, the more gaffes she makes. From her confusing the hometown of an actor (John Wayne) and a serial killer (John Wayne Gacy), to her lack of historical knowledge, to her endorsement of a philosophy of constitutional interpretation that Justice Scalia thinks "no one ought to" hold, the unbearable lightness of Michele Bachmann continues to surface.
Cross-posted on Text & History.