Vail Law: How a judge views interpretations of the Constitution impacts their rulings (column)
August 21, 2018
We will soon have a new Supreme Court Justice. Whether it will be Brett Kavanaugh or someone else, only time will tell. What is less uncertain, though, is that in the thrust and parry of confirmation, some of the things the talking heads will squawk about are "strict constructionism," "textualism" and "originalism." So what the heck are these?
Think of them as third cousins twice removed. Yes, they are related, but they devolve from different philosophical bloodlines.
Strict constructionism refers to a legal philosophy that limits or restricts judicial interpretation. It requires judges to apply the text of a particular law only as it is written. Once the court has clearly made out the of meaning of the text, no further investigation is required. In this view, judges should avoid drawing inferences from a statute or the Constitution and focus only on the text itself. It is to law sort of what Biblical fundamentalism is to theology. An example was once offered by Justice Hugo Black, who served on the court from 1937 to 1971. The First Amendment's injunction that Congress shall make no law restricting certain civil rights, Black said, should be construed strictly; "no law," thought Black, means no exceptions.
The term is often used in opposition to the phrase "judicial activism," which is meant to describe judges who seek to enact legislation through court rulings. But, lo, the juxtaposition is imperfect. Judicial activism is not the Wicked Witch of the West of strict constructionism.
Then there's this:
Textualism is a horse of a slightly different color and may be described as a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text. No consideration should be given to non-textual sources, such as the intention of the law when it was passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.
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Justice Antonin Scalia, the justice most identified with the term strict constructionism, once wrote: "I am not a strict constructionist, and no one ought to be." He called 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, "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' … 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."
Textualism looks to the ordinary meaning of the language of the text, but it also looks at the ordinary meaning of the text, not merely the possible range of meaning of each of its constituent words.
Strict constructionism is often misused as a synonym for textualism. Although a textualist could be a strict constructionist, these are distinctive views.
And originalism …
What then about originalism? How does this further muck things up?
Well really it's a bit easier than splitting the fine hairs of strict constructionism and textualism. What originalism means is "What was the original intent of the framers of the Constitution when they adopted it? What did they mean when the said what they said?"
Originalism is a way to interpret the Constitution's meaning as stable from the time of its enactment. It is fixed and mutable only by the steps laid out Article Five of the Constitution.
Originalism today is most prominently associated with Justices Thomas Gorsuch and with the late Justice Antonin Scalia, although some liberals, such as Justice Hugo Black, have also subscribed to the theory.
Originalists seek one of two alternative sources of meaning:
• The "original intent" theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.
• The "original meaning" theory, which is closely related to textualism, and is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be.
One further thing should be said; however impartial a judge may strive to be, his or her judicial philosophy — be it strict constructionism, textualism, originalism or something else — informs the way that he or she views the legal world and will provide fodder and rationale for what he or she perceives the outcome of a certain case should be.
Pull up and chair and bring your popcorn. The fate of the next 20 years or more of judicial interpretation and philosophy may well ride on how this all turns out.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.