No86

What Is Strict Construction?

Prof. Lawrence Solum
Posted
Module: Originalism and Determining Meaning

Professor Lawrence Solum discusses the different meanings of the term “strict construction.” Some people use it to describe judicial restraint, in deference to the other branches of government. Others use the term to describe judicial constraint, where the judiciary is bound to the meaning of the text regardless of the interpretation by other branches. Professor Solum proposes that perhaps the terms “restraint” and “constraint” are more useful tools than the vague phrase “strict construction.” https://youtube.com/watch?v=_fZmRZyo1CY

Transcript

Strict construction is an interesting idea in constitutional theory, with a history. So this phrase “strict construction” goes all the way back to the founding era. The phrase strict construction was used by Madison and others, but it came into contemporary constitutional dialogue in the 1960s, and it was strongly associated with then candidate, later president, Richard Nixon, who argued for strict construction, and pledged to appoint judges who were strict constructionists. Unfortunately, this idea of strict construction never had a very clear meaning. In fact, there are two different ideas about what strict construction means. Idea number one - strict construction is narrow construction. A strict constructionist narrowly construes the Constitution so as to get out of the way of Congress and the Executive, so this is strict constructionist judicial restraint, or strict constructionist deference to the political branches. The other idea of strict construction is very different. This is strict construction as constraint by text. This idea is that a strict constructionist follows the text. That might in some cases entail restraint and getting out of the way of Congress, but if what Congress has done is inconsistent with the constitutional text, then adherence to the text will mean invalidating the action of Congress. I don't find the label strict construction helpful. What I do find helpful is a very interesting and illuminating distinction between constraint and restraint, and here's the definition. Judicial constraint means following the text, being bound by the text, doing what the text requires. Judicial restraint means allowing the president and the Congress to make decisions. Sometimes these two ideas come together. A decision is both restrained and constrained, but sometimes they come apart. Sometimes a constrained judge will not be a restrained judge. I think this is a much more useful vocabulary, and I wish that in the popular press and in politics, the phrase strict judicial construction would be used less frequently.