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Legal Theory Lexicon: Strict Construction and Judicial Activism
Michael Ramsey

At Legal Theory Lexicon, Larry Solum's Legal Theory Lexicon: Strict Construction and Judicial Activism.  From the introduction:

This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that sometimes seem to have very little content as used in popular discourse.

A case can be made for a revised and conceptually more coherent version of each of these concepts.  Whether constitutional theorists will be able to agree on consistent and clear definitions remains to be seen.

On strict construction, after giving various possible definitions:

It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly descriptive and better names can be given to the view that "strict construction" could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.

I want to add an important qualification to this discussion.  It is entirely possible that "strict construction" once had a coherent meaning that has been "lost" with the passage of time.  If so, then "strict construction" may yet have an important role to play as a concept in constitutional history, and possibly, via that history, in contemporary theories of constitutional interpretation.

Similarly, on judicial activism, after considering some possible definitions:

One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.

And near the conclusion:

Can we rescue these concepts?  Here is a proposal for coherent and clear definitions:

  • Strict Construction as Judicial Constraint by the Text and Judicial Restraint If Language is Unclear.  We might define strict construction as the conjunction of two distinct ideas.  The first element would be constraint by text.  Thus, a construction would not be strict if it was inconsistent with the linguistic meaning of the text of a statute, constitution, or other legal text.  The second element would be constraint in cases where the text was not clear, e.g., where the text was vague, open-textured, or otherwise lacked a clear and discernible meaning.
  • Judicial Activism as Judicial Invalidation of Action by Legislative or Executive Officials. This definition has the consequence that "judicial activisim" would, for many constitutional theorists, be a value neutral term.  Many constitutional theories favor judicial activism in the stipulated sense: for example, originalists favor judicial activism when the orignal meaning of the constitutional text requires invalidation of a statute enacted by Congress.

The "lexicon" entries, although ostensibly aimed at law students, are incredible helpful to academic writers and commentators as well.  When they concern something I know something about, I almost always agree, or mostly agree (as I do here).

I might offer slightly different prospective definitions, though.  To me, a "strict construction" is a narrow, limited reading of the text.  In terms of the Constitution, that leads to a narrow view of its grants of power (a strict construction of the vesting of "executive Power" might think it gave the President only the power to execute law and not additional powers such as foreign affairs power) and it leads to a narrow view of constitutional rights (a strict construction of the freedom of speech might prohibit only content-based regulation of political speech, or perhaps only prior restraints).  I recall that Justice Scalia sometimes used the phrase (negatively) in contrast to a "fair construction," which he favored.

"Judicial activism" I think might also carry the connotation of judges invalidating executive or legislative action without clear basis in the text.  It would seem odd to me to label as judicial activism a judicial ruling that someone who is 34 years old cannot be President.  That definition might risk sliding into defining judicial activism as "things I think are wrong," as Professor Solum suggests.  But I think many people think there are correct rulings which nonetheless lack clear basis in the text.