Simone Lawson
In the United States, strict constructionism is a legal philosophy of judicial interpretation that limits the powers of the federal government to those explicitly granted by the Constitution. This philosophy, often associated with conservative politics, aims to ensure that the bulk of governmental power remains with the states. While it is commonly confused with textualism or originalism, strict constructionism requires a judge to apply the text as it is expressly written, which can contradict the commonly understood meaning of a law. For example, a law prohibiting the use of a knife in a crime, would, in a strict interpretation, also include dining and dashing with a knife. This interpretation is not without criticism, with some arguing that it is not a philosophy of law but a coded label for judicial decisions that favour a particular political party.
| Characteristics | Values |
|---|---|
| Limits the powers of the federal government | Only to those expressly granted by the US Constitution |
| Requires literal interpretation of the law | As written |
| Contradicts commonly understood meaning of a law | Prohibiting the use of a knife to threaten or injure |
| Restricts the powers of the federal government | To those granted by the Constitution |
| Ensures governmental power remains with the states | Prevents usurpation by the federal government |
| Interprets a word or phrase with several meanings | Applies the narrowest definition |
| Opposes broad interpretations of the Constitution |
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What You'll Learn
Judicial interpretation
Strict constructionism requires judges to interpret the Constitution's text literally, without considering the original intent or context. This method can lead to conflicts with the commonly understood meaning of the law, as the literal interpretation may differ from the intended application. For instance, a law punishing the use of a knife in a crime with a ten-year prison sentence could be interpreted literally to include dining and dashing if a knife was used to cut food.
While strict constructionism is often confused with textualism and originalism, they are distinct philosophies. Textualism interprets a document's text according to its objective meaning, disregarding the intentions of its creators. This approach is favoured by proponents who argue for simplicity, transparency, and the prevention of judicial activism. On the other hand, originalism involves examining the historical context, contemporaneous laws, and commentary to understand how the Constitution was applied immediately after its ratification. Originalists believe this approach respects the "'intent of the makers'" and adheres to the understanding of the delegates at the state conventions that ratified the document.
In judicial practice, the Supreme Court often combines textualism with other modes of interpretation. In the case of Trop v. Dulles, the Court considered the text of the Eighth Amendment before turning to moral reasoning and historical practices to interpret "cruel and unusual punishment." This combination of textualism with other interpretive methods is distinguishable from a stricter textualist approach, such as that espoused by Justice Hugo Black.
Critics of strict constructionism argue that it can lead to inflexibility and the perpetuation of erroneous precedents. They suggest that judges should consider values not explicitly set forth in the text and that strict adherence to precedent can be problematic when background principles come into dispute. Proponents of strict constructionism, on the other hand, argue that it promotes consistency, predictability, and stability in judicial interpretations.
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Federal government powers
Federalism, or the division of power between the federal and state governments, is a basic concept embodied in the US Constitution. The Tenth Amendment, ratified in 1791, is central to this, stating that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This means that the federal government's powers are limited to those specifically enumerated in the Constitution, while states retain all other powers.
The Constitution enumerates Congress's powers in Article I, Section 8, which includes the power to make all laws necessary and proper for carrying into execution the foregoing powers. This "Necessary and Proper Clause" gives the federal government certain implied powers, as ruled by the Supreme Court in McCulloch v. Maryland. The Constitution also enumerates the powers of the executive and judicial branches in Articles II and III, respectively.
The Founders intended for the national government to have limited and enumerated powers, leaving the regulation of intrastate commerce to the states. This is reflected in the first words of Article I, which created Congress: "All legislative powers herein granted shall be vested in a Congress of the United States." The Framers sought to establish a unified national government while maintaining a sphere of autonomy for state governments to exercise their police powers.
The federal government's powers have waxed and waned throughout history, with four distinct phases: post-Founding, post-Civil War, post-New Deal, and from the Rehnquist Court to the present. During the New Deal, for example, the federal government asserted broad authority to provide for the "general welfare," leading to an expansion of federal power.
While the federal government's powers are limited, it can influence states through grants and mandates. Grants may come with instructions for how the money is spent, and mandates put conditions on federal funding unrelated to how funds are spent. This has impacted areas like welfare, public education, and highway funding.
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Originalism
The theory of originalism treats the constitution like a statute, giving the words their understood meaning at the time of promulgation. This can be understood as "original intent" or "original meaning". Original intent refers to the intent of the drafters of the Constitution, which may be inferred from outside evidence such as historical context, while original meaning focuses on the understanding of the public that ratified the Constitution. The "intent of the makers" approach to interpreting documents has been used for centuries and was applied by the Supreme Court for the Constitution's first 150 years.
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Textualism
Opponents of textualism argue that judges and interpreters may ascribe different meanings to the Constitution's text depending on their background. This problem is compounded by textual provisions that are broadly worded or fail to answer fundamental constitutional questions. Opponents also argue that judges should consider values not specifically set forth in the text.
An example of textualism in a First Amendment case is Justice Black's dissent in Dennis v. United States. In this case, the Court held that Congress could, consistent with the First Amendment's guarantee of freedom of speech, criminalize the conspiracy to advocate for the forcible overthrow of the US government. The Court determined that the severity of the potential harm to the government from the speech in question justified Congress's restrictions on First Amendment rights. Justice Black dissented on the grounds that the Court should not have applied a balancing test to uphold the government's interest in preventing harm over the freedom of speech.
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Strict constructionism vs textualism
In the United States, strict constructionism is a legal philosophy of judicial interpretation that limits the powers of the federal government to those explicitly granted to it by the US Constitution. It is a philosophy that has been embraced by conservative politicians, who argue that it ensures that the bulk of governmental power remains with the states.
Textualism, on the other hand, is a theory of interpretation that focuses on the \"objective meaning\" of a document, without regard for the intent of its creators. Textualists believe that judges should enforce the Constitution and laws that conform to it, giving effect to the words of the Constitution and statutes. If the meaning of the words is clear, textualists argue that no further interpretation is needed.
While strict constructionism and textualism are often confused and sometimes used interchangeably, they are distinct concepts. Textualism allows for the use of context and outside evidence to interpret a document, whereas strict constructionism forbids this, requiring that the text be read literally. This can often lead to absurd outcomes, as Scalia noted in his rejection of strict constructionism.
Originalism is another theory of interpretation that is often confused with strict constructionism and textualism. Originalism requires examining the historical context, contemporaneous law, and commentary to interpret the Constitution as it was originally understood. While originalism and textualism may sometimes call for strict construction, they are not the same as strict constructionism.
The terms strict constructionism, textualism, and originalism are often used in political discourse, particularly during campaigns, to signal a particular judicial philosophy or approach to constitutional interpretation. However, it is important to understand the distinct meanings and implications of each theory.
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Frequently asked questions
A strict view of the constitution, also known as strict constructionism, is a legal philosophy that limits the powers of the federal government to those explicitly stated in the United States Constitution.
Strict constructionism is often confused with textualism and originalism but they are not the same. Textualism interprets a document based on its "objective meaning", while originalism considers the historical context and contemporaneous law. Strict constructionism takes a narrow approach, applying the text as it is expressly written.
Strict constructionism aims to prevent judges from making decisions based on their personal policy views, promoting consistency and predictability in legal judgments. It also ensures that governmental power remains with the states, limiting the federal government's ability to usurp power through broad interpretations of the constitution.
