Strict constructionism

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 conservativism among the judiciary.

Strict sense of the term

In its strict sense, strict construction requires a judge to apply the text as it is written and no further, once the meaning of the text has been ascertained (perhaps using tools such as originalism or purposivism). That is, judges should avoid drawing inference from a statute or constitution. [ [http://www.socialstudieshelp.com/APGOV_Judiciary.htm The Judiciary: The Power of the Federal Judiciary] , The Social Studies Help Center] Thus, for example, Justice Hugo Black argued that the First Amendment's injunction that "Congress shall make no law," should be construed strictly: the term "no law," Black thought, admitted virtually no exceptions. 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 pejorative 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. [Jeffrey Rosen, " [http://polazzo.stuysu.org/can_bush_deliver_a_conservative.htm Can Bush Deliver a Conservative Supreme Court?] ", November 14, 2004.] This usage is pervasive, but in some tension with the legal meaning of the term. On the campaign trail in 2000, for example, 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 leans more toward textualism on statutory questions rather than true strict constructionism.

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. [Karen Russell, " [http://www.huffingtonpost.com/karen-russell/why-the-strict-constru_b_4517.html Why The "Strict Constructionist" Crowd Makes Me Really Nervous] "The Huffington Post, July 21, 2005.; See also Trevor Morrison, " [http://court.thinkprogress.org/2005/07/24/roberts-the-strict-constructionist/ Roberts the "strict constructionist"?] ", Think Progress, July 24, 2005.] 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," ["A Matter of Interpretation", Scalia, Princeton Univ. Press, 1998.] 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. [Ely, Democracy and Distrust (Harvard UP 1980) at p. 1; ]

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 central 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. ["The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861." Peter Zavodnyik, The Catholic University of America Press, 2007.]

References

ee also

*Constitutionalism
*Judicial activism


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