Strict Constructionism

RATIONALE

The underlying argument behind strict constitutionalism is that if a legislature truly wants to enact a particular law, they are capable of writing it down in plain English and passing it, and it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Thus, for example, Justice Scalia refuses to look at committee reports that often accompany bills to the House or Senate floor. Supporters interpret this position as judging based on what the law is, not what it should be.

Supreme Court Justice Hugo Black wrote in Reid V. Covert , 354 U.S. 1, 5 -6 (1957), " {Link without Title} he United States is entirely a creature of the Constitution. Its power and authority have no other source."

CRITICISMS

Some argue that the term is vague and difficult to apply. Noting that it largely came into prominence as part of Richard Nixon 's presidential campaign, they point to a memo written to Nixon in which the term is explained:

A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution.

Opponents of this view claim the term is merely a codeword for judges who tend to support conservative causes, and has no intrinsic meaning of its own. {Link without Title}

Ronald Dworkin argues that strict constructionism is irreconcilable with the interpretive nature of law.

STRICT CONSTRUCTIONISM VERSUS ORIGINALISM AND TEXTUALISM

Although U.S. Supreme Court Justice Antonin Scalia is often cited as a prominent advocate of strict constructionism, Scalia demurs, averring that "the text should be interpreted neither strictly nor sloppily, but ''reasonably''"; a more accurate description of the views held by Scalia and Justice Clarence Thomas , is '' Textualist ''. Textualism is usually defined as interpreting words according to their ordinary and common public understanding. Though some use the two terms interchangeably, many contemporary legal theorists dislike the term "strict constructionism" because it is somewhat vague; even those who advocate broader interpretations of statutory or constitutional language could argue that they are more faithful to the intent and thus actually strict constructionists. Strict constructionism may also sometimes be confused with the "plain meaning" approach, which looks to dictionary definitions without reference to common public understandings. Scalia differentiates the two by pointing out that "he uses a cane" means "he walks with a cane," not what a strict use of the words might suggest. Many textualists object to the label "strict constructionist" because it is easily confused (or purposefully misrepresented) with "plain meaning" type approaches.

Strict constructionism is also sometimes used interchangeably with " Originalism ." Again, the two terms are not necessarily the same. For example, strict constructionism as applied to statutory interpretation may not conform precisely with originalism as applied to constitutional interpretation. Thus, Justice Scalia is firmly opposed to the use of any legislative materials to discern the "intent" of the drafters of a statute, but advocates the use of contemporary historical materials and records to interpret the intended meaning of terms in the U.S. Constitution. In other words, one can be a strict constructionist with respect to statutes, but not an originalist with respect to the Constitution, or vice versa.

Strict constructionism also does not necesssarily require (though it almost always involves) adherence to original meanings. For example, one can strictly construe the meaning of terms according to present ordinary meaning, rather than historical ordinary meaning. Similarly, originalism does not necessarily require strict interpretation according to contemporaneous public understanding of the Constitution. "Soft originalism" argues that, at least with respect to certain clauses in the Constitution, the Founding Fathers intended terms to embody larger, abstract concepts that could evolve over time. "Due process of law," for example, is deliberately vague in order to allow subsequent generations to incorporate their refinements on legal procedure. In support of this view, soft originalists cite comments such as Thomas Jefferson's comment to James Madison, "No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation."

SEE ALSO

Originalism

REFERENCE

Slate article with the Rehnquist quote

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Strict Constructionism