"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.

Comments

[Dave]

Professor Sunstein’s suggestion that “we have some kind of code here” seems right to me. “Strict constructionist” as used by Bush and Miers (though not Scalia) strikes me not as a carefully thought out judicial philosophy, but rather a politically loaded catch phrase designed to communicate particular substantive preferences using the language of methodology.

But why this particular catch phrase? Why is “strict construction” (the quotation marks indicating that I mean the phrase in the ersatz Bush-Miers usage) a code word for a politically conservative take on adjudication? One answer might be that there is a correlation between textual fidelity, original meaning, and conservative outcomes. At first glance, this appears plausible. Perhaps the closer an interpreter sticks to the language of the Constitution, the closer the resulting interpretation will be to whatever the document originally meant. But the examples Professor Sunstein raises (commercial speech, affirmative action) press back against this, so that explanation doesn’t seem right.

So if that correlation doesn’t work, why this catch phrase? I think this is more a matter of rhetoric than content. “Strict constructionism” connotes steadfastness, rectitude, fidelity. By contrast, criticisms of the Warren Court’s privacy cases typically focus on their purportedly inexact use of abstractions, with Griswold’s invocation of “penumbras” singled out for particular scorn. (Although it’s interesting to note that Robert Bork commented approvingly on looking to the penumbras of constitutional rights in some contexts, for example where protecting anonymity is necessary to preserving First Amendment associational interests. See Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).) For someone who agrees with these criticisms of the Griswold-Roe line of cases, endorsing “strict constructionism” can only mean one thing: that you think those cases were wrongly decided.

[Troy]

For the most part, I agree with Prof. Sunstein and Dave, but I would like to explain why, in my view, talk of “strict constructionism” by politicians does not just fail to describe a coherent method of interpretation, but is also counterproductive for Conservatives in the long run.

It is a virtue of any method of constitutional interpretation that it leads to results which are morally/politically unattractive for everyone at some point. This tends to show that the method does not simply amount to judges filling in vague terms with their most favored moral/political judgments. So we can ask, for example, whether the interpretative method of textualists, such as Scalia, leads to results that would be politically unattractive to the judge applying the method, no matter the judge’s political stripe. For Scalia it does: Scalia does not believe there is a substantive due process right protecting corporations from "excessive" punitive damages any more than there is a substantive due process right to be free of certain sodomy laws. This gives Scalia's method what could be called “legal credibility.” (This is not to say, however, that Scalia always applies his method faithfully.)

Conservative politicians often lose sight of this virtue. I agree with Dave that the reason some Conservative politicians, such as Bush, like a version of textualism is that textualism tends to lead to results that are morally/politically attractive to them. But, I contend, this is a mistake, because it ignores legal credibility. If the different methods of interpretation are simply window dressing for judges’ moral/political judgments, as (let’s loosely say) legal realists allege, then the nomination/confirmation process should focus only on judges’ moral/political views. By ignoring legal credibility, Bush in essence is acquiescing to how the legal realists would frame the debate, thereby squandering the opportunity to use legal credibility to his advantage. Some of this is due to his Conservative base, which seems to care only about results.

Bush continues to use the rhetoric of following the law instead of making the law, but his most recent nomination reveals that this is not what concerns him most. Miers' lack of a track record does not permit the debate over her nomination to focus on legal credibility, which could have been the focus if Bush had nominated someone else, like Michael McConnell. McConnell has criticized Bush v. Gore and believes school prayer is unconstitutional, two results that are unattractive to Conservatives. When Bush speaks of principled judges, he should mean judges who apply a method of interpretaiton regardless of their own moral/political views. Unfortunately, Bush seems to mean judges who share the same moral principles as Bush, which in the long-term will prove counterproductive for Conservatives, because it buys into the legal realist view of judging and squanders the advantage Conservatives could enjoy by focusing, in a consistent way, on legal credibility.

[yclipse]

The phrase "strict constructionist" became ascendant with Richard Nixon, as his description of the judicial philosophy that he would want in a nominee. The intent was to contrast such a philosophy with that of the Warren Court.

Unfortunately, despite Justice Scalia's disavowal of the phrase, it is still frequently used, often by those members of two groups - politicians and journalists - who have relatively little insight into the finer points of constitutional jurisprudence.

Dave - just about everything that a politician says is a catch phrase. Not only do we hear George Bush say that his nominee will "strictly interpret the Constitution", we also invariably hear, in the same breath, that she will not "legislate from the bench".

This not some nefarious "code". It's just how politicians talk.

[ekf]

This not some nefarious "code". It's just how politicians talk.

/poh tay' toh/ - /poh tah toh/.

[yclipse]

That has long been a quizzical comment. I have never heard anyone say "/poh tah toh/". Have you?

[JRT]

Let's not give too much credit here to the high profile proponents of "strict construction." It is foolish to pretend that politicians desire to have a legitimate rational basis for their statements about the law. All of the blabber boils down to the fact that conservatives are the political majority in this country, and they desire to exercise the full measure of that power. "Strict Construction" means in this context: "We passed this law, and you know damn well what it means: now apply it. And don't make up some phony baloney "penumbra" BS to keep it from applying either!" Now, lawyers know it isn't always that easy, but most of the people in the country (and in Bush's base) aren't lawyers, and they think it is that easy. I think in the main lawyers are wasting their time by parsing political speech about law meant for an audience of non-lawyers. It's safe to assume that "strict constructionism" is a philosophy with no real proponents. As others have suggested, it's just a political buzzword that pushes all the right buttons.