Strict constructionism
Encyclopedia
In the United States
, Strict constructionism refers to a particular legal philosophy of judicial interpretation
that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary
.
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. Ironically, Black's legacy is as a judicial activist. 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.
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. 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
.
, the justice most identified with the term, has said that he is "not a strict constructionist and no-one ought to be," and has called the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute." Scalia further distinguished the two philosophies by stating that "[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." 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.
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.
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 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, developed a liberal philosophy, while another 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 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.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Strict constructionism refers to a particular legal philosophy of judicial interpretation
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
.
Strict sense of the term
Strict construction requires a judge to apply the text only as it is spoken. 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. Justice Hugo BlackHugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
argued that the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
's injunction, that Congress shall make no law (against certain civil rights), should be construed strictly: no law, thought Black, admits no exceptions. Ironically, Black's legacy is as a judicial activist. However, "strict construction" is not a synonym for textualism
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
or originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
, and many adherents of the latter two philosophies are thus misidentified as "strict constructionists."
The term is often contrasted with the phrase "judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
," 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 originalismOriginalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
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. 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
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, and Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
," though Thomas considers himself an originalist, and Scalia outright rejects strict construction, calling it "a degraded form of textualism," his modus operandi
Modus operandi
Modus operandi is a Latin phrase, approximately translated as "mode of operation". The term is used to describe someone's habits or manner of working, their method of operating or functioning...
.
Criticism
The term has been criticized as being a misleading or meaningless term. Few judges self-identify as strict constructionists, due to the narrow meaning of the term. Antonin ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, the justice most identified with the term, has said that he is "not a strict constructionist and no-one ought to be," and has called the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute." Scalia further distinguished the two philosophies by stating that "[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." Constitutional scholar John Hart Ely
John Hart Ely
John Hart Ely is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr., according to a 2000 study in the University of Chicago's Journal of Legal Studies.-Biography:Born in New York City, John Hart...
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.
Doctrine of Absurdity
In law, strictly literal interpretations of statutes can lead 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 "Scrivner's Error"; in which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions. It is contrasted withHistory
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.A broadly accepted, but possibly apocryphal, story has Davy Crockett
Davy Crockett
David "Davy" Crockett was a celebrated 19th century American folk hero, frontiersman, soldier and politician. He is commonly referred to in popular culture by the epithet "King of the Wild Frontier". He represented Tennessee in the U.S...
delivering a speech called "Not Yours To Give", in which he urged the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
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.
The term began to be used by conservative and moderate Republican presidents beginning with Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
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, developed a liberal philosophy, while another became a moderate. The other two were in the mold of what most think of in terms of strict constructionists. Gerald Ford
Gerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...
, when running to serve a full term of his own distanced himself from the issue of appointing judges. Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
, 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.
See also
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Judicial restraintJudicial restraintJudicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
- OriginalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...