Don’t Hear What I’m not Saying: Defining Strict Constructionism to Distinguish It

 

A substantially similar version of this post previously appeared on the Least Dangerous Blog.

One of my favorite things Jordan Lorence of ADF says is, “Don’t hear what I’m not saying.” I once mentioned this to Jordan, and I don’t think he knew this is something he often says. But it is a powerful tool—it clarifies and crystallizes the point being made by forcing the listener to reject their own logical leaps and inferences. We need this tool in the interpretational-theories debate space.

In his seminal book on interpreting legal texts, A Matter of Interpretation, Justice Scalia said in no uncertain terms: “I am not a strict constructionist, and no one ought to be.”[1] Indeed, “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.”[2]

It may come as a surprise that Scalia rejected the label “strict constructionist” and admonished that “text should not be construed strictly.” Many identify Scalia with the opposite. But that is because there is constant confusion—among non-lawyers and legal types, too—surrounding the three decidedly distinct concepts of textualism, strict constructionism, and originalism.

Since the label “strict constructionist” doesn’t seem to be going away, let’s talk about it. Let’s clarify and condemn it. Let’s define and distinguish it. Let’s call out strict constructionism for what it is so textualism and originalism cannot be criticized for what they are not. Because whatever one thinks about these theories, it is vital we get the labels right. Otherwise, no ground is gained by debating them. Any debate about anything must begin with consensus about what the thing to be debated is.

So, as the Senate continues to consider new judges, and as judges old and new are increasingly invited to resolve constitutional disputes, it is critical we exercise discipline in deploying the labels textualist, strict constructionist, and originalist. They’re not the same.

Textualism: Honoring the Text

As Judge Willett recently wrote, “Text is the alpha and the omega of the interpretive process.”[3] That is textualism in a nutshell.

Justice Bolick puts it this way:

Textualism is . . . grounded in the belief that the role of judges is to enforce the Constitution and laws that conform to the Constitution . . . A textualist endeavors to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further. If they are ambiguous, the judge attempts to discern their meaning using well developed rules of construction.

As Judge Willett and Justice Bolick suggest, the bottom-line principle of textualism is that the enacted text of a law is to be given supreme deference as the ultimate repository of the law’s purpose. Because the object of textualist interpretation is enacted text, many mainstream textualists reject the use of legislative history—history that has never been enacted into law. Ilya Somin explains,

The text that is “the law” is that which has been duly enacted in accordance with the procedures outlined in the Constitution, which require it to be voted on by a majority of both houses of Congress and then presented to the president. As prominent textualist Judge Frank Easterbrook put it, textualism rests “on the constitutional allocation of powers. The political branches adopt texts through prescribed procedures; what ensues is the law.”[4]

Textualism, that is to say, is deeply rooted in the Constitution’s separation of powers.

Once a textualist has homed in on the pertinent text, textualism implicates several widely accepted ground rules. For example, Professor Caleb Nelson writes that “no ‘textualist’ favors isolating statutory language from its surrounding context.”[5] That is, legal language must be understood within the context of the law or scheme of which it is part. Or, as Professor Manning tells it, “textualism . . . in practice is associated with the basic proposition that judges must seek and abide by the public meaning of the enacted text, understood in context (as all texts must be).”[6]

Context is important because contextual clues elucidate the linguistic meaning of an open-textured legal text, especially in cases of vagueness and ambiguity. This and many other canons of construction are designed to honor textualism’s mandate: “Text is the alpha and the omega of the interpretive process.”

Textualism, then, primarily tells us what to interpret, and it implicates a number of ground rules for doing so. And as Justice Elena Kagan explained in November 2015, “we are all textualists now.”

But it is the separate province of strict constructionism and originalism to tell us how the interpretation should work.

Strict Constructionism: Living and Dying by the Text

As an interpretive philosophy, strict constructionism is, well, strict.

Professor Larry Solum writes that the term strict constructionism “appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised he would appoint judges who were ‘strict constructionists’ as opposed to the ‘judicial activism’ that characterized the Warren Court.” Unfortunately, this term has outgrown its origins.

Perhaps Professor Solum is right to also suggest “[i]t simply isn’t clear what ‘strict construction’ means.” Maybe it is true strict constructionism, as a so-called interpretive philosophy, has no coherent set of core principles. Yet the term is often used where textualism or originalism would clearly be better. And worse still, the definition most people imagine for strict constructionism is sometimes wrongly grafted onto labels like originalism and textualism.

Here is what people seem to mean when they invoke the term “strict constructionism”—especially when doing so pejoratively—and we ought to tell them they’re correct.

Strict constructionism is hyperliteralism—it provides that a text be interpreted by reading the words as they come literally. Whereas textualism requires a reader to interpret a particular provision by considering context, e.g., strict constructionism forbids such extracurriculars.

In this light, I disagree slightly with Professor Solum that the following definition from Law.com misses the mark:

strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes.

I think that’s exactly what most people have in mind for strict constructionism—a rigid interpretational technique that takes no account of developments between how the world was when the words were written and how the world is now.

Of course, my intuition is only that. I have no data to back it up. But this understanding aligns with Justice Scalia’s condemnation of the theory in his book with Bryan Garner, Reading Law. There, Scalia and Garner define “strict construction” as

1. A narrow, crabbed interpretation. 2. An interpretation according to the literal meaning of the words, as contrasted with what the words denote in context according to a fair reading.[7]

I suggest we definitively adopt this definition of strict constructionism in order to more powerfully contrast what textualism and originalism are not.

Most leading textualists—and most originalists—reject strict constructionism. Justice Scalia was no exception. He wrote with Garner that “[s]trict constructionism understood as a judicial straitjacket is a long-outmoded approach deriving from a mistrust of all enacted law.”[8] Maybe a mistrust of all enacted law isn’t so bad. Judicial straightjackets are.

Justice Scalia wrote that strict constructionism acts to “limit one to the hyperliteral meaning of each word of the text” to the exclusion of considering “[t]he full body of a text,” which often “contains implications that can alter the literal meaning of individual words.”[9] For these reasons, Scalia insisted that “[s]trict constructionism, as opposed to fair-reading textualism, is not a doctrine to be taken seriously.”[10]

Yet time and again, lawyers, commentators, elected officials, and jurists confound “strict constructionist” and the entirely different concepts of textualism and originalism. It’s possible this can be attributed to what Professor Solum suggests is a lack of clarity on what exactly strict constructionism is. But there does seem to be some consensus in modern discourse that when one refers to strict constructionism, they mean rigid literalism—or, as Scalia described it, “a judicial straitjacket.”

Let’s agree that’s what strict constructionism is, so we can explain it’s what originalism isn’t.

Originalism: The Meaning of the Text

In 1980, Paul Brest wrote an article in the Boston University Law Review, called The Misconceived Quest for Original Understanding, in which he coined the term “originalism.” Brest was not one to waste words, opening the article: “By ‘originalism’ I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.”[11] He continued, “At least since Marbury . . . originalism in one form or another has been a major theme in the American constitutional tradition.”[12]

Originalism may boast a long history, but it has not always been identified as a distinct theory. Indeed, many point to the Warren Court and Brest’s article as the genesis of a conscious discussion about an express theory of originalism. And while Justice Scalia placed a spotlight on that discussion, many still lack a basic understanding of what the theory holds.

Originalism is an interpretive theory that understands legal text to retain the meaning it had at the moment is was ratified until duly amended or repealed. In Reading Law, Scalia and Garner define the theory as follows:

1. The doctrine that words are to be given the meaning they had when they were adopted; specif[ically], the canon that a legal text should be interpreted through the historical ascertainment of the meaning that it would have conveyed to a fully informed observer at the time when the text first took effect.[13]

This should be uncontroversial: A law’s meaning does not change until those with authority to change it do so. And in our system of government, that change must come via the legislative process.

Over the years, there have been several competing theories of how and why to do originalism. Professor Solum, however, writes that all breeds of originalism are fairly characterized by a shared and irreducible core. He explains that this core comprises two principles, one linguistic and the other normative.

First, virtually “all originalists agree that the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified: this idea can be called the fixation thesis.” That is to say, the communicative content of a given set of written words does not itself evolve over time. (And there is no reason this concept cannot apply equally to statutes as to the Constitution.)

Second, “almost all originalists would agree that at a minimum the original meaning should constrain[] constitutional practice: this idea can be called the constraint principle.” In other words, judges do not derive a text’s original meaning merely as an academic exercise, but because that meaning bears on how they apply the text they are interpreting.

The most dominant strand of originalism today is known as “new originalism.” Volumes have been written about new originalism, and this piece is not remotely intended to supplement that work. But with a view toward aiding civic discourse, two key features of new originalism are worth flagging.

First, Professor Barnett explains that new originalism focuses on the original public meaning of a legal text’s words.[14] Perhaps that seems obvious, but it is a departure from earlier iterations of originalism that focused on the original intent of those who crafted a given legal text.[15] Barnett credits this development to a speech by Scalia to incoming Department of Justice employees in the 1980’s.

Second, most new originalists agree on an interpretation-construction distinction. This concept holds that interpretation and construction are two separate and distinct activities that a judge engages in when interpreting and applying a legal text to resolve a given case or controversy. Barnett sums it up as follows:

Interpretation is the activity of identifying the semantic meaning of a particular use of language in context. Construction is the activity of applying that meaning to particular factual circumstances.[16]

Notably, “construction” here should not be confused with “strict constructionism.” As used here, construction describes the work judges do in applying the linguistic meaning derived from an interpretive process. Strict constructionism, as explained above, is itself a theory of how to derive linguistic meaning.

Understanding construction as a decisional activity distinct from interpretation is most important, and best understood, in the case of vague or ambiguous text. In some situations, it is simply not enough to interpret the text because the text itself is open-textured.

For example, what does the phrase “cruel and unusual punishments” mean in the Eighth Amendment? Even after interpreting this phrase to uncover its original public meaning, a judge would likely be left with a less-than-definitive answer, making it difficult to decide a given case based on communicative content alone. In that situation, the judge would need to engage in construction—i.e., the process of using decisional rules like deference or lenity—to reach a disposition.

As should be obvious, it would be difficult to be an originalist without being a textualist. But the two concepts are distinct. Most importantly, neither is strict constructionism.

That will become clearer if originalists and textualists would put strict constructionism in its corner and distinguish it far, far away. Then, when we talk to folks about textualism or originalism, they won’t hear what we’re not saying.