Why Originalism is Not Strict Constructionism

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People often uncarefully refer to the originalist view of constitutional interpretation (endorsed most clearly by Justices Scalia and Thomas on the Supreme Court) as strict constructionism. Most careful proponents of this view detest this term, because what it seems to convey is exactly what they don't hold. They don't think that every phrase should e taken in some hyper-literal way. This issue is pretty much parallel to those who claim to take the Bible literally in everything it says but then they don't take Jesus to be a literal door, Jesus' parables to be stories of historical events, and God really to have physical nostrils that flare up when he's angry. Being an inerrantist simply does not mean taking the Bible literally in all it says, and being an originalist about the Constitution does not mean taking every construction in as strict a way as possible. Originalism takes each construction to mean what it would have been understood to mean by an intelligent but ordinary person of the time familiar with legal issues and the background of British law. That doesn't mean taking everything hyper-literally, because such strict constructions will not turn out to match how the ordinary person would have heard it. As I've been thinking about the "advice and consent" clause, this has become quite clear. When you take that clause in a strict constructionist manner, it doesn't mean at all what the original understanding of it would have been.

Here is the section in question:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

As I read this, the most literal and strict way to take this is as a future tense description of what the president will in fact do. It is a prediction, not a command to do this or statement giving him the authority to do this. It simply says he will do it. But clearly it was intended to give him this authority. What's even worse is what it says about the Senate. It says he has the power to make treaties only if 2/3 of senators agree. It doesn't use that sort of construction with nominees, however. For executive apppointments, ambassadors, and Supreme Court "judges" (whom we now call justices), it simply says that the president will do this by and with the advice and consent of the Senate. It doesn't say that they should do this. It doesn't give them the power to do anything. It simply says that the president will make these appointments and that the Senate will give advice to him and consent to his choice. If you take this strictly, rather than how it was originally understood, it really sounds as if it's saying that the president will appoint people, and the Senate will rubberstamp them. There's no discussion at all about senators not consenting, as if they had such a power. Strict constructionism thus seems to treat the senators' function as a mere formality. No one sees it as a mere formality, even those who think political considerations should be no part of the process, and almost certainly no one thought of it that way even from the very beginning.

I just thought this was a nice example of the difference between originalism and what strict constructionism would be if people held a view that really took such a name seriously. When most people use the term 'strict constructionism', what they mean is originalism. It's still a bad name, and this is why originalism's most prominent proponents insist on not using the name 'strict constructionism'.

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