In the United States, strict constructionism is a particular
legal philosophy
Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...
of
judicial interpretation
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United St ...
that limits or restricts the powers of the federal government only to those ''expressly'', i.e., explicitly and clearly, granted to the government by the United States Constitution. While commonly confused with
textualism
Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...
or
originalism
Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism ...
, they are not the same, and in fact frequently contradict, as textualists like
Antonin Scalia
Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...
have noted.
Different uses
Strict meaning
Strict construction requires a
judge
A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...
to apply the text only as it is ''expressly'' written, i.e., read
perfectly literally. This can contradict the commonly-understood meaning of a law. For example, consider a law that specifies "the use of a knife when committing a crime should be punished by ten years in prison." This would commonly be understood as prohibiting the use of a knife to threaten or injure another person. However, read purely literally, the law would also mandate ten years in prison for
dining and dashing if the diner were to use a knife to cut their food.
As a result of this distinction, nearly all textualists reject strict constructionism in this sense.
Supreme Court
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
justice
Antonin Scalia
Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...
, a major proponent of textualism, said that "no one ought to be" a strict constructionist, because the most ''literal'' interpretation meaning of a text can conflict with the ''commonly-understood'' or
original
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
meaning. Similarly, many of the
original framers of the Constitution were not strict constructionists;
Washington,
Hamilton
Hamilton may refer to:
* Alexander Hamilton (1755/1757–1804), first U.S. Secretary of the Treasury and one of the Founding Fathers of the United States
* ''Hamilton'' (musical), a 2015 Broadway musical by Lin-Manuel Miranda
** ''Hamilton'' (al ...
, and
Adams all took broad interpretations of the powers afforded to the federal government. An early attempt at limiting the federal government's powers to only those "expressly" granted by the constitution was rejected at the constitutional convention, as many of the
Founding Fathers
The Founding Fathers of the United States, often simply referred to as the Founding Fathers or the Founders, were a group of late-18th-century American revolutionary leaders who united the Thirteen Colonies, oversaw the War of Independence ...
did not originally intend for the constitution to be read in this manner.
However, some fathers not present at the convention, such as
Thomas Jefferson
Thomas Jefferson (, 1743July 4, 1826) was an American Founding Fathers of the United States, Founding Father and the third president of the United States from 1801 to 1809. He was the primary author of the United States Declaration of Indepe ...
, would later argue for a strict interpretation of federal powers.
James Madison
James Madison (June 28, 1836) was an American statesman, diplomat, and Founding Fathers of the United States, Founding Father who served as the fourth president of the United States from 1809 to 1817. Madison was popularly acclaimed as the ...
(the Constitution's primary author) tended to take a more moderate view, somewhere between the interpretations promoted by Jefferson and Adams.
Common use
"Strict constructionism" is also used in American political discourse as an umbrella term for conservative legal philosophies, which tend to be more willing to strike down federal laws and regulations for exceeding the authorities given to them by the constitution. One example of this is the
major questions doctrine. The major questions doctrine limits the ability of the executive branch to enact broad or sweeping changes without express authorization from Congress, under the principle that few people would understand a vague statute to imply the existence of broad, sweeping powers
Constitutional scholar
John Hart Ely
John Hart Ely ( ; December 3, 1938 – October 25, 2003) was an American legal scholar. He was a professor of law at Yale Law School from 1968 to 1973, Harvard Law School from 1973 to 1982, Stanford Law School from 1982 to 1996, and at the Uni ...
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.
The term is frequently used even more loosely to describe any conservative judge or legal analyst. This usage is pervasive, but in 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
George Walker Bush (born July 6, 1946) is an American politician and businessman who was the 43rd president of the United States from 2001 to 2009. A member of the Bush family and the Republican Party (United States), Republican Party, he i ...
promised to appoint "strict constructionists in the mold of Justices
Rehnquist,
Scalia
Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...
, and
Thomas
Thomas may refer to:
People
* List of people with given name Thomas
* Thomas (name)
* Thomas (surname)
* Saint Thomas (disambiguation)
* Thomas Aquinas (1225–1274) Italian Dominican friar, philosopher, and Doctor of the Church
* Thomas the A ...
", though Thomas considers himself an originalist, and Scalia outright rejected strict construction, calling it "a degraded form of textualism."
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
The Democratic-Republican Party (also referred to by historians as the Republican Party or the Jeffersonian Republican Party), was an American political party founded by Thomas Jefferson and James Madison in the early 1790s. It championed li ...
and by Democrats during the
antebellum period
The ''Antebellum'' South era (from ) was a period in the history of the Southern United States that extended from the conclusion of the War of 1812 to the start of the American Civil War in 1861. This era was marked by the prevalent practi ...
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.
The term began to be used by conservative politicians such as beginning with
Richard Nixon
Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 until Resignation of Richard Nixon, his resignation in 1974. A member of the Republican Party (United States), Republican ...
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
Harold Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultima ...
, however, shifted leftward, while another,
Lewis F. Powell, became a moderate. The other two,
Warren Burger
Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney who served as the 15th chief justice of the United States from 1969 to 1986.
Born in Saint Paul, Minnesota, Burger graduated from the St. Paul College of Law i ...
and
William Rehnquist
William Hubbs Rehnquist (October 1, 1924 – September 3, 2005) was an American attorney who served as the 16th chief justice of the United States from 1986 until his death in 2005, having previously been an associate justice from 1972 to 1986. ...
, were in the mold of what most think of in terms of strict constructionists.
Gerald Ford
Gerald Rudolph Ford Jr. (born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was the 38th president of the United States, serving from 1974 to 1977. A member of the Republican Party (United States), Republican Party, Ford assumed the p ...
, when running to serve a full term of his own, distanced himself from this issue.
Ronald Reagan
Ronald Wilson Reagan (February 6, 1911 – June 5, 2004) was an American politician and actor who served as the 40th president of the United States from 1981 to 1989. He was a member of the Republican Party (United States), Republican Party a ...
, however, also promised strict constructionists. All three of his US Supreme Court nominees loosely fell into this category. Still,
Antonin Scalia
Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...
was more of an originalist, while
Sandra Day O'Connor
Sandra Day O'Connor (March 26, 1930 – December 1, 2023) was an American attorney, politician, and jurist who served as an associate justice of the Supreme Court of the United States from 1981 to 2006. Nominated by President Ronald Reagan, O' ...
and
Anthony Kennedy
Anthony McLeod Kennedy (born July 23, 1936) is an American attorney and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Pres ...
were fairly conservative. Since Reagan, Republican presidents George W. Bush and
Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who is the 47th president of the United States. A member of the Republican Party (United States), Republican Party, he served as the 45 ...
, along with Republican nominee
John McCain
John Sidney McCain III (August 29, 1936 – August 25, 2018) was an American statesman and United States Navy, naval officer who represented the Arizona, state of Arizona in United States Congress, Congress for over 35 years, first as ...
, have all promised to nominate strict constructionist judges to the courts.
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 Scalia
Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...
, 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 ... 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.
Doctrine of absurdity
In law, strictly literal interpretations of statutes can lead one to logically deduce
absurdities, and the doctrine of absurdity is that common sense 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. It has been described as follows:
[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 .
See also
*
Constitutionalism
Constitutionalism is "a compound 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".
Political organizations are constitutional to ...
*
Judicial activism
Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
*
Judicial restraint
Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
*
Originalism
Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism ...
*
Textualism
Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...
References
External links
*
{{DEFAULTSORT:Strict Constructionism
Theories of constitutional interpretation
Conservatism in the United States