Strict constructionism? Code words.

ESTELLE Griswold's office in New Haven, Conn. had been open a week and a half when police came to arrest her one November day. At 61 this blueblood was, in fact, a flagrant criminal.

Until the cops shut her down, she was quite unabashedly violating the state's obscenity law. Her crime had nothing to do with peep shows or pornography but with helping people get contraceptives. Married people, specifically.

State law in 1961 made it a crime to use birth control devices or drugs, to dispense them or advise anyone in their use. Griswold and her co-defendant, Dr. Charles Lee Buxton, had been caught operating the Planned Parenthood Center of New Haven, which counseled married women only.

They come to mind now because of the direct line between their case and the upcoming clash over who should fill the next vacant seats on the U.S. Supreme Court.

President Bush keeps saying he wants "strict constructionists" on the court, who will put aside personal opinions and follow the law. He says he'll use no litmus tests on specific issues.

Ah, yes. It's all about legal philosophy, not results.

The thing is, strict constructionism has had different meanings at different times, depending on the political agenda of the day. And yet, does anyone doubt what decisions Bush wants from the court on certain hot-button issues'?

Justice Antonin Scalia, whom Bush names as one of his models for an ideal justice, wrote in a 1997 book. "I am not a strict constructionist, and no one ought to be." He added that the Constitution should be "construed reasonably," not strictly.

Scalia and Bush's other ideal justice, Clarence Thomas, are, however, reliable votes on certain issues. They say the Constitution does not protect abortion or gay sex from state laws criminalizing them, nor does it completely separate church and state.

Right of privacy

This is the beauty: of calling for strict constructionists. You can avoid mentioning the frowned-upon litmus test and still get your message across. These days, the term strict constructionist generally means a judge who interprets the law instead of writing policy.

This brings us to Griswold v. Connecticut. For a court ruling a strict constructionist can abhor, look no further. In 1965 the court ruled 7-2 that people have a constitutional right to privacy in the marital bed, even though the Constitution doesn't exactly say so. "We deal with a right of privacy older than the Bill of Rights," wrote Justice William O. Douglas in the majority opinion.

He cited constitutional provisions to support the ruling, but none that would satisfy a truly strict constructionist--nor would the rationale given for Roe v. Wade, the 1973 ruling legalizing abortion, which relied on the Griswold case for its privacy right.

And if you're looking for other constitutional cases that seem only loosely connected to the document itself, consider two decisions from the 1920s that said the Constitution guarantees parents the right to educate their children as they see fit. The court struck down a law in Nebraska that limited the teaching of foreign languages in private schools, and an Oregon law that barred private and religious schools altogether.

Bush had lots of material to show how far judges can go when they stray from the Constitution's text.

And yet, during the presidential debates, Bush reached back nearly 150 years for his example of impermissible judicial activism. He cited the 1857 ruling in the Dred Scott decision, which said the Constitution deemed slaves to be property.

"That's a personal opinion. That's not what the Constitution says," Bush said Oct. 8.

The Dred Scott decision is horrendous for its result, which allowed the continued degradation of a race of people. Most scholars argue its author unhinged himself from the Constitution when he wrote it. Chief Justice Roger Brooke Taney, at least, would debate the point.

The Constitution did, indeed, protect the institution of slavery. It forbade Congress from outlawing the trade for 20 years and declared that runaway slaves should be returned to their owners.

"It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws," Taney wrote in Scott. The court's duty is to interpret the Constitution "according to its true intent and meaning when it wits adopted."

What could sound more strict constructionist than that?

Speaking in code

But why did the president pull this particular case out of the dustbin as an example of the sort of judging he disdains? For one thing, it's completely safe to condemn justices who upheld slavery, whereas it wouldn't have been safe to condemn the other cases.

How popular would it have been to say it's OK for a state to outlaw contraceptives because the Constitution grants no privacy rights? Or to complain about judges who found a constitutional right of parents to educate their children as they see fit?

Denouncing the Dred Scott case had another critical advantage for Bush. Within the anti-abortion movement, Roe v. Wade is considered the modern version of Dred Scott.

Scott devalued the humanity of slaves, just as Roe is said to devalue the humanity of fetuses, so the reasoning goes. The nation rose up against Scott and eventually defeated it, just its anti-abortionists hope to rid the country of Roe v. Wade.

Scalia himself linked the two while dissenting in an abortion case, saying the loose way Taney interpreted the Constitution in the Scott case led to Roe.

Although much of the audience watching the debate of Oct. 8 might have been baffled by Bush's citation of Dred Scott, those in the anti-abortion movement got his message loud and clear. They knew he was speaking in code, saying he had a philosophical requirement lot the justices he will pick but not a results-oriented test.

They knew better than to give a strict construction to Bush's words. And if Estelle Griswold, who died in 198 I, were still around, she probably would, too.

Ann Woolner is a columnist with Bloomberg News.