The oddest and most contentious turn in the discussion may have been the remarks of Jack Balkin, a professor of constitutional law at Yale, who, in a sardonic way, implied that there might be a hotbed of deconstructionist legal thought in the Bush administration. He sketched an outline of Derrida's formulation of three "aporias" (that is, unpassable points or double binds) in the relationship between justice and law.
For example, there is the aporia that Derrida calls "singularity." The law consists of general rules, and to be just, those rules must be equally binding on everyone. Yet while it is illegal to kill another person, it would be unjust to impose the same penalty on an assassin and someone defending herself from attack. Thus, justice exceeds even a just law.
Likewise, Derrida pointed to the aporia of "undecidability" -- the law guides the judge's decision, but the judge must decide which particular laws apply in a given case. And there is an aporia of "urgency" -- for while the legal process unfolds in time, "justice," as Derrida put it, "is that which must not wait." In each case, justice requires the law, but exceeds it.
"The Justice Department," said Balkin, "has invoked all three aporias of law" in the "war on terror." He ran through the list quickly: The suspension of due process in some cases (singularity). The government must have the discretion to apply the law as it sees fit, given its knowledge of circumstances (undecidability). And justice demands swift, even immediate action (urgency). "I am afraid that Bush has hoisted Derrida by his own aporias," said Balkin.
This is a clever point. But does it necessarily invalidate Derrida's theorizing? It's quite possible that what is true for Bush was equally true for Clinton.
The contestable point, then, might not be the question of whether Derrida's theory is essentially liberal or conservative. Probably it is neither, in the sense that it is useless to both. The real question is whether it makes any sense to call Bush a "deconstructionist" of the law for the ways in which he has simultaneously "applied" the law and "exceeded" it.
But in textbook deconstruction, deconstruction simply happens -- in structure, in authority, and in social order. With the Law, we could say that the law does it to itself; deconstruction isn't something that is claimed ideologically or mastered. So it's pointless to worry about Bush's performance of deconstruction. In this way of thinking (and if I'm understanding McLemee's synopsis of Balkin's point), Balkin's is essentially a clever debating point, not a reading of Derrida.