Strict constructionism

In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.

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—in this view—should avoid drawing inferences from a statute or constitution and focus only on the text itself.[1] Justice Hugo Black (1886–1971) argued that the First Amendment's injunction, that Congress shall make no law (against certain civil liberties), should be construed strictly: no law, thought Black, admits no exceptions. However, "strict construction" is not a synonym for textualism or originalism. Antonin Scalia, a major proponent of textualism, said that "no one ought to be" a strict constructionist, although to be a strict constructionist was preferred to being a "nontextualist".[2]

The term often contrasts with the phrase "judicial activism", used to describe judges who seek to enact legislation through court rulings.

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 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, 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 rejected strict construction, calling it "a degraded form of textualism", his modus operandi.[4]

History

The use of the term strict construction in American politics is not new. The term was used regularly by members of the Democratic-Republican Party 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.[5]

A broadly accepted, but possibly apocryphal, story has Davy Crockett delivering a speech called "Not Yours To Give", in which he urged the United States Congress to reject an appropriation for a Naval widow on the grounds that Congress had no Constitutional authority to give charity. He was said to have been inspired to this view by Horatio Bunce, a constituent in his district and by accounts given, a strict constructionist.[6]

The term began to be used by conservative and moderate Republican presidents beginning with Richard Nixon in 1968 when he was running for election. His pledge was to appoint justices that interpret the law and reinstate "law and order" to the judiciary. President Nixon appointed four justices that seemed (at the time) to be of that philosophy. One of them, Harry Blackmun, however, shifted leftward, while another, Lewis F. Powell, became 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 this issue. Ronald Reagan, however, also promised "Strict Constructionists". All three of his US Supreme Court nominees loosely fell into this category. Still one was more of an originalist while the other two were fairly conservative. Every major Republican candidate since Reagan has promised to nominate only strict constructionists for the US Supreme Court and mostly such judges for other federal courts.

Criticism

The term has been criticized[7] as being a misleading or meaningless term.[8] Few judges self-identify as strict constructionists, due to the narrow meaning of the term. Antonin Scalia, the justice most identified with the term, once wrote: "I am not a strict constructionist, and no one ought to be", calling the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute". Scalia summarized his textualist approach as follows: "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." He continued with one real case to differentiate them:

The difference between textualism and strict constructionism can be seen in a statutory case my Court decided last term. The statute at issue provided for an increased jail term if, "during and in relation to ... [a] drug trafficking crime," the defendant "uses ... a firearm." The defendant in this case had sought to purchase a quantity of cocaine; and what he had offered to give in exchange for the cocaine was an unloaded firearm, which he showed to the drug-seller. The Court held, I regret to say, that the defendant was subject to the increased penalty, because he had "used a firearm during and in relation to a drug trafficking crime." The case was not even close (6–3). I dissented. Now I cannot say whether my colleagues in the majority voted the way they did because they are strict-construction textualists, or because they are not textualists at all. But a proper textualist, which is to say my kind of textualist, would surely have voted with me. The phrase "uses a gun" fairly connoted use of a gun for what guns are normally used for, that is, as a weapon.

When you ask someone "Do you use a cane?" you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway.[9]

Doctrine of absurdity

Constitutional scholar John Hart Ely believed that "strict constructionism" is not really a philosophy of law or a theory of interpretation, but a coded label for judicial decisions popular with a particular political party.[10]

In law, strictly literal interpretations of statutes can lead one to logically deduce absurdities, and the doctrine of absurdity is that commonsense interpretations should be used in such cases, rather than literal reading of a law or of original intent. The absurdity doctrine is a doctrine in legal theory, also known as "scrivener's error exception"; in which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions.[11][12][13] It has been described as follows:[14]

The common sense of man approves the judgment mentioned by Puffendorf [sic], that the Bolognian law which enacted "that whoever drew blood in the streets should be punished with the utmost severity", did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner who breaks out when the prison is on fire – "for he is not to be hanged because he would not stay to be burnt".[15]

See also

• Constitutionalism
• Judicial activism
• Judicial restraint
• Originalism

References

1. "The Judiciary: The Power of the Federal Judiciary", The Social Studies Help Center
2. Antonin Scalia. "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws" (PDF). The Tanner Lectures on Human Values. University of Utah. p. 98. Archived from the original (PDF) on 11 September 2006. Retrieved 16 September 2015.
3. Jeffrey Rosen, "Can Bush Deliver a Conservative Supreme Court? Archived 2005-12-19 at the Wayback Machine", November 14, 2004.
4. Antonin Scalia, A Matter of Interpretation 23 (Amy Guttman ed. 1999).
5. "The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861." Peter Zavodnyik, The Catholic University of America Press, 2007.
6. "Not yours to give", Foundation for Economic Education.
7. "Legal Theory Lexicon: Strict Construction & Judicial Activism"
8. Karen Russell, "Why The 'Strict Constructionist' Crowd Makes Me Really Nervous", The Huffington Post, July 21, 2005.; See also Trevor Morrison, "Roberts the 'strict constructionist'?", Think Progress, July 24, 2005.
9. A Matter of Interpretation, Scalia, Princeton Univ. Press, 1998.
10. Ely, Democracy and Distrust (Harvard UP 1980) at p. 1;
11. The Absurdity Doctrine, Harvard Law Review, John F. Manning, Vol.116, #8, June, 2003, pp. 2387-2486,
12. Statutory Construction and the "Absurdity Doctrine" or "Scrivener's Error" Exception, Francis G.X. Pileggi,
13. Glen Staszewski, "Avoiding Absurdity", Indiana Law Journal, Vol. 81, p. 1001, 2006,
14. Dougherty, Veronica M., "Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation", 44 Am. U. L. Rev. 127, 1994–95 (purchase required for access to full article).
15. K Mart Copr. V. Cartier, Inc., 486 U.S. 281 (1988) (Scalia concurring in part and dissenting in part), quoting U.S. v. Kirby, 74 U.S. 482, 487 (1868) per Dougherty, Veronica M., "Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation

External links

• Full text of "Not yours to give"
• "Strict Constructionists" . New International Encyclopedia. 1905.