How do you know constitutional ambiguity and functional necessity when you come across it? This is an important question and opens the door to the death of "strict construction" as binding rather than as a rule of thumb (one among many), in my view.

No doubt. While most of the time, Strict Construction is used as an argument against the courts making up new law, it is problematic on occasion. If the Supreme Court were to knock down every action of the legislature that violates the letter of the Constitution, we'd definitely need to amend the Constitution a lot more. That may be a good thing. But it's clear that a strictly construed 1789 document isn't practical in all instances.

I agree. I see a legitimate distinction between an activist judiciary striking down laws based on a made-up Constitution, such as sewing together a right of privacy from loose strands of the document, and a judiciary that allows the elected branches some leeway in how they handle things in the gray areas of the Constitution. To use a sports analogy, it's better for the umpires to "let the players play" rather than injecting themselves too much into the game and calling the ticky-tack fouls. On the other hand, we don't want umpires making up their own strike zone.

But, I agree, from a purely philosophical standpoint, there's little real difference.

I like the strike zone analogy, partly because everyone knows that umpires do vary their strike zones slightly, and pitchers and catchers know this as well (that's why pitchers like Greg Maddux test the outside edge when they start). If you just stared at the rule book, you wouldn't be able to account for the actual practice of calling strikes. Plus, the american league umpires call a different strike zone from the national league umpires, and players rarely complain about this; indeed, they adopt their styles to the differences -- that's why the Braves starters like to throw low and away a lot of the time, while that strategy wouldn't help as much in the narrower and taller American league strike zone. That's as it should be; it's an inevitable part of a game played and judged by human beings.

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