"I am not a strict constructionist, and no one ought to be."
Here is a passage from an excellent essay: "I am not a strict constructionist, and no one ought to be . . . . 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."
This passage is from Justice Scalia's essay in the book, A Matter of Interpretation. In his essay, Justice Scalia defends "textualism." He thinks that a strict constructionist is "better . . ., I suppose, than a nontextualist." But he describes strict constructionism as "a degraded form of textualism that brings the whole philosophy into disrepute."
Justice Scalia's discussion is relevant because the President seeks judges who believe in "strict construction"; because nominee Harriet Miers has said that the Constitution should be strictly construed; and because several prominent Republicans want some assurance that Ms. Miers believes in "strict construction." But as with "not legislating from the bench," so too here: It is not at all clear what "strict constructionists" do or believe.
It is doubtful that strict constructionists believe in upholding legislation unless it is very clearly, and beyond the slightest doubt, in violation of the Constitution. (Justice Oliver Wendell Holmes tended to believe that, but Justice Scalia doesn't.) Apparently strict constructionists are textualists, but almost everyone is a textualist; the hard cases arise when the text is unclear. Are strict constructionists supposed to believe that the Constitution should be interpreted to mean what it originally meant? Justice Scalia is a committed originalist, but to his credit, he describes himself as a "faint-heated" originalist: He does not want to use the original understanding as a kind of bomb that would explode many decades of American law, even when there have been large-scale departures from the original meaning. Is he therefore disqualified from the camp of strict construction? Does a nominee have to be an originalist, or at least a faint-hearted one, to be a strict constructionist? (If so, Chief Justice Roberts seems disqualified, because he has not embraced originalism.)
Maybe strict constructionists will refuse to use ambiguous phrases in the Constitution to create new rights. But it's pretty new to use the Constitution to protect commercial advertisers from regulatory restrictions, and it's pretty new to understand the equal protection clause to give white people the right to be free from affirmative action programs. (The constitutional attack on affirmative action programs is extremely hard to defend on originalist grounds, as explained in my book, Radicals in Robes.) Over the long arc of American history, it's even fairly new to understand the Constitution to protect property owners from "regulatory takings" -- regulation that diminishes the value of property, without physically invading it. Do strict constructionists want to uphold restrictions on commercial advertising, affirmative action programs, and regulatory takings?
In my view, it is certainly correct to say that judges should not use ambiguous constitutional phrases to impose large-scale social reforms on the American public. But Justice Scalia was right to criticize the idea of "strict construction," and as with not "legislating from the bench," we seem to have some kind of code here.
A suspicion: Whatever strict construction is, Roe v. Wade is taken, by many people, to be what strict construction isn't; and when a judge is said to believe in strict construction, she is said to reject the approach in Roe (along, perhaps, with efforts to require states to recognize same-sex marriage or to remove religion from the public domain). So far, perhaps, so good. The problem is that the idea of strict construction promises a general theory of interpretation, and it isn't able to fulfill that promise.