View source for Strict constructionism

{{Short description|United States legal philosophy in which judges must interpret laws exactly as written}}
{{Distinguish|Originalism}}
{{Judicial interpretation}}
{{United States constitutional law}}

In the [[United States]], '''strict constructionism''' is a particular [[Philosophy of law|legal philosophy]] of [[judicial interpretation]] 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]] or [[originalism]], they are not the same, and in fact frequently contradict, as textualists like [[Antonin Scalia]] have noted.

==Different uses==
===Strict meaning===
Strict construction requires a [[judge]] to apply the text only as it is ''expressly'' written, i.e., read [[Literal and figurative language|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 [[Dine and dash|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 of the United States|Supreme Court]] justice [[Antonin Scalia]], 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 [[Originalism|original]] meaning.<ref>{{cite web |author1=Antonin Scalia |author-link1=Antonin Scalia |title=Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws |website=The Tanner Lectures on Human Values |publisher=University of Utah |access-date=September 16, 2015 |url=http://www.tannerlectures.utah.edu/lectures/scalia97.pdf|archive-url=https://web.archive.org/web/20060911103004/http://www.tannerlectures.utah.edu/lectures/scalia97.pdf |archive-date=September 11, 2006 |page=98}}</ref> Similarly, many of the [[Framers of the Constitution|original framers of the Constitution]] were not strict constructionists; [[George Washington|Washington]], [[Alexander Hamilton|Hamilton]], and [[John Adams|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 of the United States|Founding Fathers]] did not originally intend for the constitution to be read in this manner.<ref name="Bordewich">{{cite book |last=Bordewich |first=Fergus M. |title=The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government |publisher=Simon and Schuster |year=2016 |isbn=978-1451691931 |location=New York |page=130}}</ref> However, some fathers not present at the convention, such as [[Thomas Jefferson]], would later argue for a strict interpretation of federal powers. [[James Madison]] (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]] 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.<ref>Ely, ''Democracy and Distrust'' (Harvard UP, 1980) at p. 1;</ref> 

The term is frequently used even more loosely to describe any conservative judge or legal analyst.<ref>Jeffrey Rosen, "[http://polazzo.stuysu.org/can_bush_deliver_a_conservative.htm Can Bush Deliver a Conservative Supreme Court?] {{webarchive |url=https://web.archive.org/web/20051219192336/http://polazzo.stuysu.org/can_bush_deliver_a_conservative.htm |date=December 19, 2005}}", November 14, 2004.</ref> 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]] promised to appoint "strict constructionists in the mold of Justices [[William Rehnquist|Rehnquist]], [[Antonin Scalia|Scalia]], and [[Clarence Thomas|Thomas]]", though Thomas considers himself an originalist, and Scalia outright rejected strict construction, calling it "a degraded form of textualism."<ref>Antonin Scalia, ''A Matter of Interpretation'' 23 (Amy Guttman ed. 1999).</ref>

==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]] and by Democrats during the [[antebellum period]] 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.{{citation needed|date=November 2010}} 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.<ref>Zavodnyik, Peter, ''The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861'', The Catholic University of America Press, 2007.</ref>

The term began to be used by conservative politicians such as beginning with [[Richard Nixon]] in 1968 when he was running for election.{{citation needed|date=November 2010}} 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]], however, shifted leftward, while another, [[Lewis F. Powell]], became a moderate. The other two, [[Warren Burger]] and [[William Rehnquist]], were in the mold of what most think of in terms of strict constructionists. [[Gerald Ford]], when running to serve a full term of his own, distanced himself from this issue. [[Ronald Reagan]], however, also promised strict constructionists. All three of his US Supreme Court nominees loosely fell into this category. Still, [[Antonin Scalia]] was more of an originalist, while [[Sandra Day O'Connor]] and [[Anthony Kennedy]] were fairly conservative.{{Citation needed|date=April 2019}} Since Reagan, Republican presidents George W. Bush<ref>{{cite news|url=https://www.nytimes.com/2004/11/14/weekinreview/can-bush-deliver-a-conservative-court.html|title=Can Bush Deliver a Conservative Court? |first=Jeffrey|last=Rosen|newspaper=The New York Times|date=November 14, 2004}}</ref> and [[Donald Trump]],<ref>{{cite news|url=https://www.reuters.com/article/us-usa-court-pence-idUSKBN15A2RR|title=Trump to nominate 'strict constructionist' to Supreme Court: Pence|publisher=Reuters|date=January 26, 2017|via=www.reuters.com}}</ref> along with Republican nominee [[John McCain]],<ref>{{cite web|url=https://www.cnn.com/2008/POLITICS/05/06/mccain.judges/index.html|title=McCain pledges more conservative judges |publisher=CNN}}</ref> have all promised to nominate strict constructionist judges to the courts.

==Criticism==
The term has been criticized<ref>"[http://lsolum.typepad.com/legaltheory/2011/02/legal-theory-lexicon-strict-construction-judicial-activism.html Legal Theory Lexicon: Strict Construction & Judicial Activism]"</ref> as being a misleading or meaningless term.<ref>[[Karen Russell (legal analyst)|Karen Russell]], "[http://www.huffingtonpost.com/karen-russell/why-the-strict-constru_b_4517.html Why The 'Strict Constructionist' Crowd Makes Me Really Nervous]", ''[[The Huffington Post]]'', July 21, 2005. See also Trevor Morrison, "[http://court.thinkprogress.org/2005/07/24/roberts-the-strict-constructionist/ Roberts the 'strict constructionist'?]" [[Think Progress]], July 24, 2005.</ref> Few judges self-identify as strict constructionists, due to the narrow meaning of the term. [[Antonin Scalia]], 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:

<blockquote>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 ... [a] 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.<ref>''[https://web.archive.org/web/20060911103004/http://www.tannerlectures.utah.edu/lectures/scalia97.pdf A Matter of Interpretation]'', Scalia, Princeton University Press, 1998.</ref></blockquote>

===Doctrine of absurdity<!--'Doctrine of Absurdity' and 'Doctrine of absurdity' redirect here-->===
In law, strictly literal interpretations of statutes can lead one to logically deduce [[absurdities]], and the '''doctrine of absurdity'''<!--boldface per WP:R#PLA--> 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 "[[Clerical error|scrivener's error]] exception"; in which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions.<ref>"The Absurdity Doctrine", ''Harvard Law Review'', John F. Manning, Vol. 116, #8, June 2003, pp. 2387-2486, {{Jstor|134276}}</ref><ref>[http://www.delawarelitigation.com/2007/04/articles/chancery-court-updates/statutory-construction-and-the-absurdity-doctrine-or-scriveners-error-exception/ "Statutory Construction and the "Absurdity Doctrine" or 'Scrivener's Error' Exception"], Francis G. X. Pileggi</ref><ref>Glen Staszewski, "[https://ssrn.com/abstract=896310 Avoiding Absurdity]", ''Indiana Law Journal'', Vol. 81, pp. 1001, 2006,</ref> It has been described as follows:<ref>Dougherty, Veronica M., "[http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/aulr44&div=12&id=&page= Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation]", 44 ''Am. U. L. Rev.'' 127, 1994–95 {{subscription}}.</ref>

{{blockquote|The common sense of man approves the judgment mentioned by [[Pufendorf|Puffendorf]] {{sic}}, that the Bolognian law which enacted "that whoever drew blood in the streets should be punished with the utmost severity", did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of [1st] [[Edward II of England|Edward II]], which enacts that a prisoner who breaks out of prison shall be guilty of a felony, does not extend to a prisoner who breaks out when the prison is on fire – "for he is not to be hanged because he would not stay to be burnt".<ref>''K Mart Corp. v. Cartier, Inc.'', 486 U.S. 281 (1988) (Scalia concurring in part and dissenting in part), quoting ''U.S. v. Kirby'', 74 U.S. 482, 487 (1868) per Dougherty, Veronica M., "[http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/aulr44&div=12&id=&page= Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation]"</ref>}}

==See also==
* [[Constitutionalism]]
* [[Judicial activism]]
* [[Judicial restraint]]
* [[Originalism]]
* [[Textualism]]

==References==
{{reflist}}

==External links==
* {{Cite NIE|wstitle=Strict Constructionists|year=1905 |short=x}}

{{DEFAULTSORT:Strict Constructionism}}
[[Category:Theories of constitutional interpretation]]
[[Category:Conservatism in the United States]]