Strict constructionism

Strict construction requires a judge to apply the text only as it is written. Once the court has a clear meaning of the text, no further investigation is required. Judges—in this view—should avoid drawing inferences from a statute or constitution and focus only on the text itself.[1] Justice Hugo Black (1886–1971) argued that the First Amendment's injunction, that Congress shall make no law (against certain civil liberties), should be construed strictly: no law, thought Black, admits no exceptions. However, "strict construction" is not a synonym for textualism or originalism. Antonin Scalia, a major proponent of textualism, said that "no one ought to be" a strict constructionist, although to be a strict constructionist was preferred to being a "nontextualist".[2]

The term often contrasts with the phrase "judicial activism", used to describe judges who seek to enact legislation through court rulings.

"Strict constructionism" is also used in American political discourse as an umbrella term for conservative legal philosophies such as originalism and textualism, which emphasize judicial restraint and fidelity to the original meaning of constitutions and laws. It is frequently used even more loosely to describe any conservative judge or legal analyst.[3] This usage is pervasive, but in some 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 Rehnquist, Scalia, and Thomas", though Thomas considers himself an originalist, and Scalia outright rejected strict construction, calling it "a degraded form of textualism."[4]

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 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. 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.[5]

A broadly accepted, but possibly apocryphal, story has Davy Crockett delivering a speech called "Not Yours To Give", in which he urged the United States Congress to reject an appropriation for a Naval widow on the grounds that Congress had no Constitutional authority to give charity. He was said to have been inspired to this view by Horatio Bunce, a constituent in his district and by accounts given, a strict constructionist.[6]

The term began to be used by conservative and moderate Republican presidents beginning with Richard Nixon in 1968 when he was running for election. 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 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 one was more of an originalist while the other two were fairly conservative. Since Reagan, Republican presidents George W. Bush[7] and Donald Trump,[8] along with Republican nominees John McCain[9] and Mitt Romney,[10] have all promised to nominate strict constructionist judges to the courts.

The term has been criticized[11] as being a misleading or meaningless term.[12] 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:

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.[13]

• Constitutionalism
• Judicial activism
• Judicial restraint
• Originalism

• Full text of "Not yours to give"
• "Strict Constructionists" . New International Encyclopedia. 1905.