Should the Supreme Court Abide by the Strict Constructionist Philosophy?

Nowadays strict constructionist approach is the subject of heated debates. The strict constructionist approach was used by Democrats and Jeffersonian Republicans. However, despite the supporters of this philosophy, who claim that the strict constructionist approach is the only appropriate one, the Supreme Court should not abide by the strict constructionist philosophy, due to various reasons (i.e. meaningless and misleading nature of the term itself).

The Strict Constructionist Philosophy

Firstly, in order to make the discussion sound and reliable, it is important to understand the conception of the strict constructionist philosophy. In fact, the strict constructionist approach is not new, as the term "strict constructionism" was used by Thomas Jefferson and the Republicans. According to the idea of the strict constructionism, the Constitution of the United States should be "strictly construed". As it is stated in the article related to Strict Construction and Judicial Activism, this phrase gained its popularity after it was used by Richard Nixon during his presidential elections in 1968 in his promise that "he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court" (Strict Construction and Judicial Activism, n.p.).

The strict constructionism philosophy implies the fact of interpretation of the Constitution of the United States in accordance with the narrow and literal definition of the language it was written in, neglecting the societal changes and different conditions when the Constitution was created. Indeed, this approach seems to be inefficient, as the country has faced drastic historical, social, and political changes, and the frameworks within which the U.S. Constitution was created has become obsolete in relation to the modern conditions. In contrast to the strict construction, there is a broad constructionist approach that is also inefficient, as it provides yet another one-sided solution to the problem. This approach implies broadening the context, as it means that the language, in which the U.S. Constitution was created, can be expanded and interpreted in order to fit the new modern conditions, and standards of human conduct. The broad construction, in such a way, gives ground to some scholars to assert that the strict constructionism is the lesser from the two evils. However, it is not true.

As it is asserted in the article "Strict Construction and Judicial Activism" (n.p.), the term strict constructionism offers two possible meanings. The first one is referred to as 'textualism' and adheres to the opinion that all possible interpretations of the U.S. Constitution should be based (and grounded) in its text alone. However, this idea seems to be quite doubtful, as the strict constructionist approach opposes the of the Warren Court jurisprudence; however, it is also rooted in the constitutional texts to a certain extent. This argument can be supported by the example of the right to privacy (in Roe v. Wade, and Griswold v. Connecticut) rooted in the 14^th Amendment. Finally, the very definition "provides no content to the idea that constructions must be "strict" (Strict Construction and Judicial Activism, n.p.). From here it follows that, taking into account this possible meaning of the strict constructionism, Supreme Court should not abide by the strict constructionist philosophy.

The next possible meaning of the strict constructionist approach is referred to as "literalism". According to it, the strict construction should adhere to literal interpretations of the text of the U.S. Constitution, but not the purposive ones. In case we examine this approach more thoroughly, we can come to conclusion that the strict constructionism involves the case when the constitutional texts are read and interpreted literally, where nothing is added to its textual meaning. As it may seem, this 'literal' approach sounds reasonable, thus being, probably, the most efficient and promising, as it provides the most concise interpretation of the constitutional texts and is conductive to the conception of "strictness" in the strict constructionist approach. However, this approach also faces difficulties, as those, who were arguing in support of the strict constructionism, have rarely spoken about the literalism.

The vague and misleading nature of the "literalism" in the strict constructionism philosophy can be illustrated by the 1^st Amendment and its application. For example, in case the Supreme Court will abide by the strict constructionist philosophy, the 1^st Amendment will be applied to the Congress alone, but not to the executive, the states, or to common-law doctrines (Strict Construction and Judicial Activism, n.p.). Another example relates to the very interpretation of the clause "Congress shall make no law", which should be interpreted strictly: "no law". The privileges and immunities clauses in the U.S. Constitution, as well as the republican form of the government clause and the due process clause also will be misinterpreted, in case the "literalism" approach in the strict constructionism will be applied. From here it follows, that in this case the Supreme Court also should not abide by the strict constructionist philosophy.

Next, sometimes the strict constructionist approach is referred to as "originalism", which involves two major forms - original-meaning and original-intention originalism. As the term runs, the original-meaning originalism implies the way the constitutional text was perceived and understood by the people at the times it was adopted, while the original-intention originalism, correspondingly, implies the intention of the persons who were responsible for creation of the given text. Again, these conceptions seem to be inappropriate, as, for example, original-intentions originalism will make possible for the Supreme Court taking into consideration the intentions, which are in fact not strictly written in the text of the U.S. Constitution. At the same time, the original-meaning originalism is also inadequate (although it seems to be more appropriate than the original-intentions originalism), because the strict constructionist philosophy hardly embodies the idea that the constitutions text should be interpreted by the Supreme Court "in a way that fits the way it would have been read at the time it was adopted" (Strict Construction and Judicial Activism, n.p.). Again, the conclusion is that the Supreme Court should not abide by the strict constructionist philosophy.

There is an opinion that the strict constructionist approach is referred to as the presumption of Constituonality. At the same time, one can hardly provide an appropriate explanation to the fact why the presumption of Constituonality should be related to the strict constructionist philosophy, because by doing this, one can easily come to conclusion that the strict constructionist approach in relation to the U.S. Constitution will invalidate the government action that violated the meaning of the text of the U.S. Constitution. And, one of the last (but not the least) interpretations of the approach implies narrow interpretation of the delegated powers. Evidently, it should be noted that the very term 'strict constructionism' has plenty of meanings, thus leading to misinterpretation and meaningless nature of the term itself. In case the person tries to provide better interpretation to the strict constructionist philosophy, he is able to find better name to the things or processes described, thus failing to provide the exact and detailed definition of the 'strict constructionism' term. The conclusion is the same - the Supreme Court should not abide by the strict constructionist philosophy due to the lack of the definition.

Yet, as far as the discussion relates rather to the theory than to the practice, one can consider the paper to be ungrounded. However, in order to understand why the Supreme Court should not abide by the strict constructionist philosophy, we can undertake the effort to discover what a "strict constructionist" America looks like. Karen Russell in his article reminds that in 1787 the U.S. citizens were allowed to vote only in case they could prove that they are owners of the land. African-Americans had no rights at all. The environmental rights were not addressed in the U.S. Constitution. Next, in 1886, the supporters of the strict constructionist philosophy asserted that "separate but equal" violated no equal protection clause of the U.S. Constitution (Plessy v. Ferguson). This decision was, in fact, wrong, and it remained wrong until it was "finally overturned by Brown v The Board of Education in 1954 by "activist judges" (Russell, 2005). As it is stated in the article, in 1965 the Supreme Court adopted legalization of the birth control for married couples in so-called Griswold decision (Griswold v. Connecticut). According to the decision of the Supreme Court, the Connecticut's law under which birth control for married couples was prohibited violated the right of marital privacy. In such a way, in case the Supreme Court would abide by the strict constructionist philosophy, the U.S. citizens would have no Griswold decision and, consequently, no birth control for married couples (Russell, 2005).

From here it may follow that, speaking with the words of the Center for American Progress, strict constructionism philosophy allows "judges to reach their preferred (and sometimes morally abhorrent) results while claiming that the outcome was dictated by history and constitutional text" (Would Strict Constructionism Have Freed Dred Scott?), and therefore, in conclusion it may be said that the Supreme Court should not abide by the strict constructionist philosophy.

Works Cited

Legal Theory Lexicon 035: Strict Construction and Judicial Activism. 6 May 2007. 23 October 2007 .

Russell, Karen. Why The "Strict Constructionist" Crowd Makes Me Really Nervous. 21 July 2001. 23 October 2007 .

Would Strict Constructionism Have Freed Dred Scott? 26 October 2004. 23 October 2007 .