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Strict constructionism

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Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. In the United States the phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.

Strict sense of the term

Strict construction requires a judge to apply the text only as it is written. Once the court has a clear meaning of the text, no further investigation is required. Judges should avoid drawing inferences from a statute or constitution and focus only on the text itself. [1] Justice Hugo Black argued that the First Amendment's injunction, that Congress shall make no law (against certain civil rights), should be construed strictly: no law, thought Black, admits no exceptions. This seems overly strict to us today, but ironically, Black's legacy is as a judicial activist.[2] However, strict construction is not a synonym for textualism or originalism, and many adherents of the latter two philosophies are thus misidentified as "strict constructionists."

The term is often contrasted with the phrase "judicial activism", used to describe judges who seek to enact legislation through court rulings, although the two terms are not actually opposites.

Common use

"Strict constructionism" is also used in American political discourse as an umbrella term for conservative legal philosophies such as originalism and textualism, which emphasize judicial restraint and fidelity to the original meaning (or originally intended meaning) of constitutions and laws. It is frequently used even more loosely to describe any conservative judge or legal analyst.[3] This usage is pervasive, but in some tension with the legal meaning of the term. For example, on the campaign trail in 2000, when speaking on his choices for new Supreme Court Justices, President George W. Bush promised to appoint "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas," though Thomas considers himself an originalist, and Scalia outright rejects strict construction, calling it "a degraded form of textualism," his modus operandi.[4]

The meaning of "strict construction", then, may be different, depending on who uses it and in what context; an appellate judge asking counsel at oral argument whether the statute should be construed strictly is likely using the term in its legal sense; a candidate on the campaign trail who promises to appoint or oppose strict constructionists is likely using the term as a surrogate for a broader set of conservative legal views.

Criticism

The term has been criticized as being a misleading or meaningless term. [5] Few judges self-identify as strict constructionists, due to the narrow meaning of the term. Antonin Scalia, the justice most identified with the term, has said that he is "not a strict constructionist and no-one ought to be,"[6] and has called the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute." In contrast, he claims to look for the ordinary meaning of words, not their "strict" meaning. Constitutional scholar John Hart Ely opined that it was not really a philosophy of law or a theory of interpretation, but a coded label for judicial decisions popular with a particular political party. [7]

History

The use (and misuse) of the term strict construction in American politics is not new. The term was used regularly by Jeffersonian Republicans and Democrats during the antebellum period when they argued that powers of the federal government listed in Article I should be strictly construed. They embraced this approach in the hope that it would ensure that the bulk of governmental power would remain with the states and not be usurped by the federal government via novel interpretations of its powers. Perhaps the best known example of this approach is Jefferson's opinion arguing against the constitutionality of a national bank. Because the vagueness of Article I inevitably lent itself to broad interpretations as well as narrow ones, strict constructionists turned to the somewhat restrained descriptions of the powers of Congress that were offered by advocates of the Constitution during ratification. Thus, politicians who identified themselves as strict constructionists embraced an approach to constitutional interpretation that resembles what we today call originalism.[8]

The term began to be used by conservative (and even moderate) Republican presidents beginning with Richard Nixon in 1968 when he was running for election. His pledge was to appoint judges that interpret the law and reinstate "law and order" to the judiciary. He appointed four judges that seemed to be of that philosophy. One of them, however, evolved into a liberal philosophy, while another was a moderate. The other two were in the mold of what most think of in terms of strict constructionists. Gerald Ford, when running to serve a full term of his own distanced himself from the issue of appointing judges. Ronald Reagan, however, also promised "Strict Constructionists". All three of his US Supreme Court judges loosely fell into this category. Still one was more of an originalist while the other two were fairly conservative. Every major Republican nominee since Reagan has promised to nominate only strict constructionists for the US Supreme Court and mostly such judges for other federal courts.


References

  1. The Judiciary: The Power of the Federal Judiciary, The Social Studies Help Center
  2. [1] "The judicial activist wing, led by Justices Hugo L. Black and William O. Douglas..."
  3. Jeffrey Rosen, Can Bush Deliver a Conservative Supreme Court?, November 14, 2004.
  4. Antonin Scalia, A Matter of Interpretation 23 (Amy Guttman ed. 1997).
  5. Karen Russell, Why The "Strict Constructionist" Crowd Makes Me Really NervousThe Huffington Post, July 21, 2005.; See also Trevor Morrison, Roberts the "strict constructionist"?, Think Progress, July 24, 2005.
  6. "A Matter of Interpretation", Scalia, Princeton Univ. Press, 1998.
  7. Ely, Democracy and Distrust (Harvard UP 1980) at p. 1;
  8. "The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861." Peter Zavodnyik, The Catholic University of America Press, 2007.

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