July 22, 2005

Although I respect their passion on this issue, these bloggers are in danger of jumping the tracks over the use of what has become a rather banal piece of political jargon. Although the term "strict constructionist" has been warped in past use as code for judical conservatism, it actually refers to a judicial philosophy that is separate and distinct from "originalism". A contructionist looks to the "plain meaning" of the text, with the framer's intent becoming important only if the text is capable of several meanings; for the most part, the "clear meaning" will be the "framer's intent". An originalist is only concerned with the framer's intent; if the drafter(s) of the text meant something different than what the text appears to be saying, then you go with what the drafters wanted, and ignore the plain meaning of the statute today.

The example we were always given in law school concerned civil rights cases. An originalist ignored the literal meaning of the words in the 14th Amendment, for example, and attempted to assay what its drafters thought back in the late-1860's when they drafted those words, in order to give them meaning. Since many of the drafters were comfortable with Jim Crow laws in the North at the time the 14th Amendment was ratified, the "separate but equal" doctrine could survive constitutional muster when reconciling the clear language of the 14th Amendment with the actual beliefs of its drafters. A "strict constructionist", on the other hand, emphasized both the clear language of the amendment and the impact "separate but equal" laws would have on African-Americans, and saw a contradiction. The majority opinion in Plessy v. Ferguson was an originalist one, while Justice Harlan's dissent was based on a strict interpretation of the actual language of the 13th and 14th Amendments.

In all honesty, I'm a bit creeped out by any judicial candidate discussing (or being asked about) his "philosophy", unless that philosophy is essentially that he will be fair, unbiased and without prejudice. Although the example listed above is a clear case of a strict interpretation of the Constitution leading to a better, more humane result than an originalist reading, there are cases (such as the meaning of "freedom of speech") where the views of the Framers are more expansive than those who take the strict constructionist view, ie., that the right only extends to the barring of legislation infringing on vocal expressions. Depending on your ideology, one man's activist judge is another's strict constructionist. Possessing a "philosophy" should be a disqualifying demerit for any judicial nominee, and one of the few hopeful signs so far about Roberts is that he doesn't appear to be wed to any.

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