Political Theory (Loosely Interpreted): October 2005 Archives

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.

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