At RCP’s blog, they have a post pulling together some blog chatter about Giuliani’s pro-choice self-description and his views on Court appointments.  Here’s one remark that got my attention:

Bush describes himself as pro-life; Giuliani as pro-choice. That doesn’t necessarily mean that they’re all that far apart - in terms of practical effect.

So, in other words, Giuliani will be as much of a basically do-nothing President on life issues as Mr. Bush has been, but at least he will be more upfront about his indifference?  Inspiring!

Then there was this one:

He’s basically parrotting Bush’s position, which is, felicitiously enough, my position, and a principled, coherent position to take on the issue. Put strict constructionists on the court to adjudicate not legislate new dubious rights, and Roe may or may not fall, and then the states can decide on the question.

I don’t know that it’s necessarily principled or coherent, but if it is effectively the same position then we can count on Giuliani to appoint justices who believe (or at least publicly state that they believe) Roe is settled precedent about which there is nothing more to say.  So, in fact, Roe definitely will not fall, and the “strict constructionists” appointed by Bush or a future Giuliani administration (I shudder at the thought) will not actually be like any strict constructionists that any constitutionalist would recognise as such. 

Strict construction has become one of those meaningless phrases that Republican candidates learn to say because they know that it is what their constituents want to hear.  Those constituents, God bless them, are still working on the assumption that Republicans in government would like to limit the role of the state and sharply define its powers.  This is entertaining, I suppose, in the way that someone taking candy from a baby is entertaining.  ”Strict construction” is now right up there as a meaningless talking point with “government has gotten too large” or “our states are the laboratories of our democracy,” which Republicans will utter right before (or even after!) they vote for massive new entitlements or nationalise education standards.  Giuliani hopes that if he utters this phrase often enough, people will become confused and think that he actually means the same thing they do when they use it.  Sometimes he runs into trouble when other people point out what strict constructionist is supposed to mean (via Ross):

KING: Let’s move to some things domestic. You’ve had some quotes lately that — that seem contradictory. I know you’re pro-choice, you’ve always been pro-choice.


KING: Yet you’ll say you’ll appoint judges who are strict constructionists. If that’s the case, they’re going to vote to overturn “Roe v. Wade,” which you don’t want.

GIULIANI: I don’t know that. You don’t know that.

KING: Well, what is strict constructionist?

GIULIANI: Well, OK, there are a lot of ways to explain that. I mean (UNINTELLIGIBLE)… 

Actually, there aren’t a “lot of ways” to explain what strict construction is.  But then it all depends on what the meaning of “construction” is, right?  Maybe he means that linguistic meaning is constructed by judges, but that these judges should construct meaning in a rather strict way.  Perhaps Giuliani is saying that he is in favour of a button-down, businesslike nominalism, as opposed to the free-love, hippie commune kind.  I think Giuliani would like to find judges who have a respectable way of making it all up as they go along. 

Of course, actual, hard-core strict constructionists of the old Jeffersonian mode don’t exist in our judicial system, because they would never be able to endure the law school where they would learn to parrot precedents that have essentially no basis whatever in the Constitution, starting with Marbury v. Madison and getting worse from thereThese folks certainly don’t get appointed to high courts–they would be compelled to throw out reams and reams of legislation, and I don’t know of many Senators who like to see the number of federal laws decreasing at a rapid pace.  That is a topic all its own for another time, but it is worth remembering whenever people start throwing around the label “strict constructionist.”  It is almost always the case that, if politicians are using the phrase (with the exception of Ron Paul and maybe a couple others), they have no idea what it means or have no intention of adhering to that view.  Of course, I’ve never quite understood Republican presidential candidates who think they can claim to be strict constructionists when it comes to the kinds of judges they appoint but who can then be ueber-Hamiltonian in their discoveries of all sorts of implied and inherent powers in their office once elected.  They couldn’t just be pretending to be defenders of the Constitution before they got elected and then become usurpers afterwards, could they?  That wouldn’t be very honest at all!

One more related item.  Here is Rich Lowry on Romney’s flip-floppery:

For all the trouble the flip-flops have given him, let’s face it, we wouldn’t even be talking about him if he were a one-term pro-choice former governor of Massachusetts.

But for some reason “we” are talking incessantly about a two-term pro-choice mayor from New York.  “We” are not just talking about him as if he were a serious candidate, but actually as the “frontrunner” and a “top-tier” candidate.  There is a disconnect in all of this somewhere.