Talk:Strict constructionism

Scalia's "quotation"?

From the article as it stands.

Scalia differentiates the two by pointing out that "he uses a cane" means "he walks with a cane", not what a strict use of the words might suggest.

Are these quotes? Strictly, "he walks with a cane" isn't very helpful either. Most people walk with their legs; I know I do. And walking with just one cane seems a little unstable to me -- you'd fall over. I think you'd need two canes, at least. And not to use your legs in the process, obviously.

If this is a loose summary of his argument, it might be better to have "he walks with the aid of a cane". Of course, if this is a quotation (give or take) of Scalia's argument, we can't do that to his words; it has to stand as-is. However, I don't know where the author got this from, so can't check. Wooster 16:52, 4 September 2005 (UTC)

Strictly, "he walks with a cane" isn't very helpful either -- um, yes, but the whole point is about reasonable rather than strict interpretation, and there's an obvious reasonable interpretation of "he walks with a cane" (yes, it's a quote), which is probably why Scalia didn't feel the need to add extra words. -- Jibal 02:06, 16 November 2006 (UTC)

Here is one of Scalia's dissents in which he states:

When someone asks "Do you use a cane?" he is not inquiring whether you have your grandfather's silver handled walking stick on display in the hall; he wants to know whether you walk with a cane.

Scalia has often used this analogy. – Quadell ^{(talk) (bounties)} 14:49, 15 November 2005 (UTC)

Blog Reference

Can anyone find a more reputable source than a random blog for the view that "...the term is merely a codeword for judges who tend to support conservative causes, and has no intrinsic meaning of its own." ?
Surely Wikipedia isn't stooping to use blogs in our reference notes yet, are we? --Alfoor 04:30, 15 November 2005 (UTC)

Here is one from Peter J. Rubin, a professor of constitutional law at Georgetown University and President of the American Constitution Society for Law and Policy. And here is one from a guy who has argued 20 cases before the Supreme Court. Why does it matter whether they say so in a blog or a magazine or a book? – Quadell ^{(talk) (bounties)} 14:44, 15 November 2005 (UTC)

Haha! Isn't Wiki basically a glorified blog? 209.91.15.10 (talk) 06:29, 1 June 2009 (UTC)

Title

This is called textualism, not constitutionalism. Please fix it. (this unsigned comment was added on 26 February 2007 from IP 71.253.228.144)

Neither the current version of the article nor the version which existed on 26 February 2007 contain the word "constitutionalism." I suspect that 71.253.228.144 just misread it. NCdave 00:41, 26 September 2007 (UTC)

History

Perhaps this page should include a history/historical perspective of Strict Constructionism. I believe that it would be worth mentioning American advocates of this theory (Jefferson, Madison) as this article seems to be oriented solely towards American Constitutional history. (this unsigned comment was made on 8 May 2007 from IP 200.8.30.81)

I agree that this should have a history. Jefferson was noted for his strict constructionist opinions (if not practices). It should definitely be included 200.109.104.187 15:51, 24 May 2007 (UTC)

Excellent idea. A couple of quotes from the Founders & Framers would be good.

There are plenty of representative quotes from which to choose. E.g., paragraph 19 of Washington's Farewell Address argues for strict constructionism, or at least judicial restraint.

In fact, I don't believe that there is any extant record of anyone in those days advocating anything resembling the flexibility of a Living Constitution. Rather, the fear of an activist judiciary animated the anti-federalists (who opposed the new Constitution). The federalists countered by arguing, not that judicial flexibility would be good, but that there was no risk of it. Nobody in those days defended judicial activism or flexibility of legal interpretation.

IMO, the Federalist Papers (by Madison, Hamilton & Jay) are probably the best place to find representative quotes. The Federalist Papers argue very strongly for strict constructionism, or at least some form of originalism. As the clearest and most extensive record of the opinions about the Constitution of those who wrote and ratified it, the Federalist Papers carry unique weight when it comes to understanding American legal history.

In Federalist No. 78, they declared that "inflexible and uniform adherence" to the Constitution and the rights of individuals is "indispensable" in the courts, and they affirmed the strict constructionist principle that in legal interpretation "nothing would be consulted but the Constitution and the laws."

In fact, in Federalist No. 78 they intimated that we'd be better off without any federal courts at all, than to have federal jurists who can't be trusted to rule strictly in accordance with the principles of original intent!

"It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body."

Likewise, in Federalist 81 they suggest impeachment as the remedy for jurists who take liberties with the meaning of the Constitution and laws. NCdave 01:16, 26 September 2007 (UTC)

"Rationale"

I am of the opinion that the entire "Rationale" section should be removed. Any objections? – Quadell ^{(talk) (random)} 16:30, 22 May 2007 (UTC)

I concur with the suggested removal. That entire section of the article is poorly written and unsourced and was clearly not drafted by a licensed attorney.--Coolcaesar 22:07, 23 May 2007 (UTC)

Wow, your suggestion that the reputed contribution must come from a licensed attorney is inane. What about a constitutional scholar—e.g., a political scientist? To the extent that my personal experience helps, plenty of professional lawyers I've spoken with are categorically unaware of these methods of interpretation, lest the judge he or she works with has a particular reputation. --75.101.60.3 (talk) 04:32, 17 December 2009 (UTC)

Quotes and sources

The article currently attributes the quote to both Scalia and Thomas. That's erroneous, and needs to be corrected:

...even though Scalia and Thomas have said that they are "not strict constructionists and no-one ought to be."

I think it is true that Thomas calls himself an originalist, rather than a strict constructionist, but the words attributed to him in the article are not his. What's more, the word's aren't even (quite) Scalia's. Scalia's famous quote has been paraphrased (I could say misquoted), into a plural form ("constructionists"), to make it appear that he was speaking for multiple people. That's improper. If he is to be quoted, he should be quoted accurately.

You're right. An anon altered the quote to make it appear that it referred to two people. I changed it back. – Quadell ^{(talk) (random)} 14:49, 26 September 2007 (UTC)

Also, the article says that "strict construction" is used loosely as a term of art by the American political left, as a caricature of conservative jurisprudence. Is that true? Can someone cite examples?

Well, Liberal blogs frequently criticize strict constructionism, or point out inconsistencies, as in here and here. As for misusing the term as a generic term, you'll sometimes see commenters on blogs confusing terms like "neocon", "far-right", "strict constructionist", etc., but really this particular term is not often used sloppily as a pejorative term by the left. They're far more likely to criticize the term as meaningless. – Quadell ^{(talk) (random)} 14:49, 26 September 2007 (UTC)

Also, I think the tone of the paragraph, and the reference to Bush, convey a negative POV. It suggests that Bush is ignorant of the proper use of the term, which is surely inaccurate. Rather, politicians understandably avoid technical terms like interpretivist, textualist, and originalist, which few voters understand, in favor of less precise but more easily understandable terms like "strict constructionist."

I disagree. I don't see any evidence that Bush is at all concerned with details of any strains of conservative philosophy. I also don't think "strict construction" is any more common or understandable than "originalist" or "textualist". I'd say Bush used the term "strict constructionist" to mean "will overturn Roe-v-Wade" without using those words.

Better, and more neutral, would be something like this:

"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 (or originally intended meaning) of constitutions and laws. This usage is pervasive, but in some tension with the legal meaning of the term. On the campaign trail in 2000, for example, President George W. Bush promised to appoint "strict constructionists in the mold of Justices Rhenquist, Scalia, and Thomas," though Thomas considers himself an originalist, and Scalia leans more toward textualism on statutory questions, rather than true strict constructionism.

That gives up the juicy Scalia quote, but it is more accurate and more neutral.

What's more, the accurate version of the Scalia quote is already included in the article on Scalia, and IMO needn't be duplicated here (and certainly not twice!).

Comments, anyone? NCdave 00:24, 26 September 2007 (UTC)

I like your wording, but I think the Scalia quote is still relevant to the article and should be included. (It doesn't have to be juxtaposed next to Bush's quote, however.) – Quadell ^{(talk) (random)} 14:49, 26 September 2007 (UTC)

Here's a very specific question: Is the use of the adjective "American" in the above proposed paragraph needed? In other words, is this (political) use of the term "strict constructionist" strictly American, or is it also used elsewhere in the English-speaking world? If it is used in this way in political discourse elsewhere, then we should drop the adjective "American." NCdave 01:23, 26 September 2007 (UTC)

I can't find any reference to the phrase "strict constructionist" outside of a U.S. context. Owen Dixon, for example, fits the definition of "strict constructionist" better than does Thomas, but he is never referred to as such. – Quadell ^{(talk) (random)} 14:49, 26 September 2007 (UTC)

Okay, I've refactored and partially rewritten much of the article, partly based on your suggestions above. – Quadell ^{(talk) (random)} 15:23, 26 September 2007 (UTC)

With an eye for the NPOV Wikipedia advertises to desire to have, I think this article feels very politically slanted against this term, attempting to render the term almost entirely dismissible. Reading it with a liberal viewpoint I would rejoice. Reading it with a conservative viewpoint I would say this article was clearly written by a liberal trying to hide bias in biased commentary and questionable and somewhat misapplied quotes. If NPOV is to be considered seriously, then please accept this observation and revise. With all due respect, and regardless of popular politics, the actual unique role of the judiciary as outlined in the constitution is to interpret the constitution, not to usurp legislation of policy from elected officials, the basis for the sentiment of this term and justification for its support and validation is warranted and should be represented in this space if NPOV is to be maintained. – llh 2009 May 26, 03:23GMT —Preceding undated comment added 02:33, 27 May 2009 (UTC).

I disagree. I read it as differentiating the intended distinction between a strict constructionist (e.g. Black) approach from that of an originalist or textualist (e.g. Scalia). It also observes that the term has been co-opted to refer to conservatism in the judiciary and is frequently contrasted, perhaps inappropriately, to judicial activism. It frankly removed some of the connotational stinkiness I'd associated with the term.

Meanwhile, as I'd just read the Scalia quote in textualism article, the phrase "ordinary meaning of words" struck me as too vague to match Scalia's "it should be construed reasonably, to contain all that it fairly means" and too close to confusing it with plain meaning. Refactored to drop that phrase and include the original quote from the man himself. TrivialJim (talk) 22:52, 30 August 2010 (UTC)

Puffenstuff vs. Pufendorf

In this quote: "The common sense of man approves the judgment mentioned by Puffenstuff (sic. Puffendorf), that the Bolognian law which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity’...", both the case being cited and the older case being indirectly quoted obviously refer to the words of Samuel von Pufendorf; I'm not sure where "Puffenstuff" came from in this context. This passage appears on several pages; I've left in the '[sic]' but changed "Puffenstuff" to "Pufendorf" and corrected the link to refer to the political philosopher rather than to the children's television series. - Liber loquax (talk) 10:08, 16 October 2011 (UTC)

Loose Constructionism

Since loose constructionism redirects here, this article should probably contain a more complete coverage of both philosophies and compare and contrast them for a little more clarity. Should we consider just moving this to a page called Constructionism instead so that the coverage can be more well-rounded? Vramasub (talk) 18:03, 22 January 2012 (UTC)

Black's Legacy

Currently, the source (Questia.com), is to an unknown page. It's unclear what article is being cited. Furthermore, http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1900&context=facpubs supports the inference from the first part about Black (the "no law" part) that he was a textualist. I propose adjusting the entry to reflect this, or to at least show that there is some dispute over Black's legacy. — Preceding unsigned comment added by 141.161.120.206 (talk) 05:28, 27 September 2012 (UTC)

Doctrine of absurdity

The first paragraph ends with an unclear "It is contrasted with" — Preceding unsigned comment added by Satchal (talk • contribs) 02:17, 15 April 2013 (UTC)