Jonah Patel
Strict constructionism is a theory that limits the interpretation of legal and constitutional language to the literal meaning of the text at the time of its passage. It is a conservative approach to constitutional interpretation that is often used to support political positions. The term strict constructionist has been used in American politics for a long time, with politicians such as Richard Nixon, Ronald Reagan, George W. Bush, and Donald Trump promising to appoint strict constructionist judges to the courts. However, few judges self-identify as strict constructionists due to the narrow meaning of the term. The theory contrasts with loose construction, which allows broader discretion by judges to determine intent in legal language.
| Characteristics | Values |
|---|---|
| Interpretation of the Constitution | Limited to the literal meaning of the text at the time of passage |
| Allows for broader discretion by judges to determine intent | |
| Judicial appointments | Justices appointed by Richard Nixon, Ronald Reagan, George W. Bush, and Donald Trump have been described as strict constructionists |
| Few judges self-identify as strict constructionists due to the narrow meaning of the term | |
| Political usage | Used by members of the Democratic-Republican Party and Democrats during the antebellum period |
| Used by Republicans to support political positions by portraying them as value-neutral | |
| Originalism | Reading the Constitution as it was understood by the ratifiers or how an objective, informed person would have read it at the time |
| Requires examining the historical context and contemporaneous law and commentary | |
| Textualism | Interpreting a document based on its words and structure without considering legislative history or the intent of lawmakers |
| Text is considered the "alpha and omega" of the interpretive process |
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Originalism
Proponents of originalism argue that it was the primary method of legal interpretation in America from the country's founding until the New Deal, when competing theories of interpretation grew in prominence. Originalism gained mainstream acceptance by 2020. Jurist Robert Bork is credited with proposing the first modern theory of originalism in his 1971 law review article, "Neutral Principles and Some First Amendment Problems," published in The Yale Law Journal. In 1977, law professor Raoul Berger expanded on the theory, positing that rulings by the Warren and Burger Courts were illegitimate because they deviated from the Constitution's original intent. In 1985, Edwin Meese, United States Attorney General under President Ronald Reagan, advanced a constitutional jurisprudence based on original intent.
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Textualism
Originalism is another theory of interpretation that involves reading the Constitution as a court would have immediately after its adoption. This can involve examining the original understanding of the ratifiers or, if that cannot be determined, how an objective, informed person would have read it at the time. Originalism requires examining not just the Constitution's text but also previous history and contemporaneous law and commentary.
The Constitution's Necessary and Proper Clause has been misinterpreted as giving Congress broad powers, but historical and legal research suggests that it was well-defined and limited.
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Judicial decisions
The concept of strict constructionism has been embraced by some as a way to constrain judicial activism and ensure that governmental power remains primarily with the states. Richard Nixon, during his 1968 presidential campaign, promised to appoint justices who would interpret the law strictly, in contrast to the judicial activism attributed to the Warren Court. This usage of the term has continued, with George W. Bush also pledging to appoint "strict constructionists" to the Supreme Court during his campaign.
However, the effectiveness of strict constructionism as a guiding principle in judicial decisions has been questioned. Critics argue that it fails when one constitutional provision can only be interpreted narrowly by broadly interpreting another. The Dred Scott v. Sandford case (1857) is often cited as an example of this challenge, where Chief Justice Roger B. Taney's strict constructionist interpretation of federal power contradicted his broad interpretation of constitutional limitations on Congress's authority and the rights of slaveholders.
Additionally, some justices, such as Antonin Scalia and John Hart Ely, have rejected strict constructionism, considering it a "degraded form of textualism." They argue that a strictly literal interpretation of the text can conflict with the original or commonly understood meaning of the law. Instead, they advocate for a reasonable interpretation that considers the full context and intent of the law.
Despite these criticisms, supporters of strict constructionism argue that it is essential for maintaining the credibility and impartiality of the Supreme Court. They believe that a strict interpretation of the Constitution serves as a legal anchor, ensuring that the Court remains neutral and trusted in contentious legal issues. Recent cases, such as Dobbs v. Jackson Women's Health Org. (2022) and Nat’l Fed’n of Indep. Bus. v. Sebelius (2012), have highlighted the ongoing debate between strict constructionism and more subjective approaches to constitutional interpretation.
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Judicial interpretation
Strict constructionism is the theory that advocates for a hyperliteral interpretation of a text, reading the words as they are without considering modern contexts and developments. It is a narrow interpretation that focuses on the literal meaning of the text at the time of its passage. In the context of the US Constitution, strict constructionism would involve interpreting the document based on a literal and narrow definition of the language, without considering the differences between the historical and modern conditions, inventions, and societal changes. This approach aims to limit the discretion of judges in interpreting legal and constitutional language.
Textualism, on the other hand, is the theory that a document should be interpreted based on its words and structure, without considering other evidence of the parties' intent. It is deeply rooted in the Constitution's separation of powers and emphasizes the importance of context in understanding the linguistic meaning of a legal text, especially in cases of ambiguity. Textualism is often associated with Supreme Court Justice Antonin Scalia, who argued that judges should apply textualism to federal statutes while disregarding legislative history and the "intent of lawmakers".
Originalism, as a theory of constitutional interpretation, involves reading the US Constitution as it was understood by the ratifiers ("original understanding") or, if that understanding cannot be determined, how an objective, informed person would have interpreted it at the time ("original meaning"). Originalism requires examining not just the text of the Constitution but also its historical context, contemporaneous law, and commentary.
In the United States, the debate around strict constructionism has often been influenced by political ideologies. For example, the term was used by conservative politicians such as Richard Nixon, who pledged to appoint justices who would interpret the law strictly and reinstate "law and order" to the judiciary. However, some of his appointees, like Harry Blackmun, did not adhere to strict constructionist philosophies. The term has also been used by Republican presidents and nominees, such as George W. Bush, Donald Trump, and John McCain, who promised to nominate strict constructionist judges to the courts.
Despite the political usage of the term, few judges self-identify as strict constructionists due to its narrow and specific definition. Notable figures like Supreme Court Justice Antonin Scalia and constitutional scholar John Hart Ely have rejected strict constructionism, arguing that it is not a valid theory of interpretation and that it conflicts with the original intent of the Constitution.
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Federal power
In the context of the US Constitution, strict constructionism is an approach that holds that the federal government has limited powers, strictly defined by the Constitution. It asserts that if a power is not specifically granted, the government cannot assume it has that power. This interpretation of the Constitution aims to ensure that the majority of governmental power remains with the states and prevents the federal government from usurping power through novel interpretations of its authority.
The idea of strict construction has been a significant aspect of American political discourse, with proponents arguing for a narrow interpretation of the Constitution to limit federal power. This perspective was notably advocated by Thomas Jefferson and James Madison, who took a strict view of the federal government's powers during their presidencies. Jefferson, for instance, believed that the Constitution did not authorize the federal government to establish a national bank or acquire new territory. He argued that the acquired territories should become sovereign states, following the process outlined in the Constitution for creating new states.
In contrast, Alexander Hamilton, John Marshall, and other Federalists favored a loose construction of the Constitution, asserting that the federal government had broader powers than those explicitly stated. They believed in a flexible interpretation of the Constitution, allowing for implied powers to adapt to new circumstances and needs. This dispute over strict versus loose construction, or strict versus broad construction, was a critical issue in the early years of the United States.
The term "strict construction" has evolved in its usage and now carries a more political connotation, often employed to support particular political positions. Despite this shift, understanding the concepts of strict and loose construction is crucial in American politics and law, as they shape how the Constitution is interpreted and how power is exercised by the federal government.
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Frequently asked questions
Strict constructionism is a theory that limits the interpretation of legal and constitutional language to the literal meaning of the text at the time of its passage. It is also known as "hyperliteralism".
Textualism requires a reader to interpret a particular provision by considering context, whereas strict constructionism forbids this. Textualism is associated with Supreme Court Justice Antonin Scalia.
Originalism is reading the Constitution as a court would have immediately after its adoption. Originalism requires examining not just the Constitution's text but also previous history and contemporaneous law.
In the case of McCulloch v. Maryland (1819), Chief Justice John Marshall wrote a majority opinion determining that the federal government's effort to create a national bank was constitutional.
Strict constructionism has been criticised as being a misleading or meaningless term. Few judges self-identify as strict constructionists due to the narrow meaning of the term.
