Strict Construction

Justice Stevens’ decision to retire prompted the age old discussion of “strict construction” by judges. The idea is that judges are supposed to strictly apply the law to the facts at hand and not do much in the way of reflection on the law or the desirability of the outcome. During that discussion, I suggested that I hadn’t actually had the pleasure of observing a strict constructionist, regardless of how a particular judge might describe him or herself. Hugo Black is probably as close as we’ve gotten.

What occurred to me only later is what immense responsibility this would place on legislators if they were actually forced to deal with nothing but strict constructionist judges. They’d have to think through the full implications of what they wrote into law without being able to trust that judges would be, well, judicious in how the law was applied. It reminded me of a passage from Neal Stephenson’s Cryptonomicon:

This “sir, yes sir” business, which would probably sound like horseshit to any civilian in his right mind, makes sense to Shaftoe and to the officers in a deep and important way. …he has come to understand the [military] culture for what it is: a system of etiquette within which it becomes possible for groups of men to live together for years, travel to the ends of the earth, and do all kinds of incredibly weird shit without killing each other or completely losing their minds in the process. The extreme formality with which he addresses these officers carries an important subtext: your problem, sir, is deciding what you want me to do, and my problem, sir, is doing it. My gung-ho posture says that once you give the order I’m not going to bother you with any of the details – and your half of the bargain is you had better stay on your side of the line, sir, and not bother me with any of the chickenshit politics that you have to deal with for a living. The implied responsibility placed upon the officer’s shoulders by the subordinate’s unhesitating willingness to follow orders is a withering burden to any officer with half a brain, and Shaftoe has more than once seen seasoned noncoms reduce green lieutenants to quivering blobs simply by standing before them and agreeing, cheerfully, to carry out their orders.

I’ve read enough legislation and draft legislation in my time to shudder a bit at the thought of judges applying the language absolutely in all situations unless the text specifically instructs them not to regardless of whether doing so makes sense or seems remotely just. That would really up the pressure on legislators to craft legislation meticulously, being sure to describe every caveat and exception.


  1. Jackson says

    Working in the Indiana legislature, I remember a committee I was in once where someone pointed out to a legislator that their bill was completely unconstitutional. This (Republican) legislators response: “That’s not my problem.”

    So I definitely agree, we’d need law makers to actually craft laws carefully, and for that to happen in Indiana we’d need to recruit a much more capable (intelligent, perhaps) legislature. Unfortunately, we tend to favor the simple “aw shucks” kind more…

  2. says

    Doug, I’d venture to say you’ve read more legislation than the legislators, whether state or federal. We already know that they don’t read the bills they vote on, the health care bill being only the latest and most obvious case in point.

    They sure as shit ought to care about the ramifications. It certainly affects us in the real world.

  3. Frank says

    Once upon a time legislators needed to be careful what they voted for or put out as laws because the public had a nasty tendency to mete out their disapproval with a rope and a tree or a bucket of tar and some feathers. Since those times are now considered uncouth and uncivilized, legislators have figured out that they can screw the public ten ways to Sunday and their worst comeuppance? You might not get elected back into office. Ohhhhh…ouch….. The good old days weren’t always good, but some of their ideas do bear re-investigating. A legislator fearful of his public, is going to listen to the public more than some lobbyist hack who’s likely to get him injured.

  4. says

    Mike says, “We already know that they don’t read the bills they vote on” —-
    He may “know” this, but I sure don’t believe that…….
    Understanding a bill is of course not the same as reading it.
    To fully understand the complete health care bill would require more time than any one person could devote to the thing, so I’m thinking that certain staff or congressman were made responsible for researching and understanding particular sections.
    The only ones that wouldn’t be expected to read any of that particular bill are the ones who had their minds made up to vote against it regardless of what it contained.

  5. says

    I think drafting a bill is like when I sign a legal document that I know Im obligated to abide by,after I sign it.Even if I read it I wouldn’t understand it,thats why I see my lawyer ( literally). He says if you sign,this is what you have to do,and here are some caveats, and he explains it in 1 and 2 syllable words. It’s an expertise in what signing a certain document could mean.

    Someone most likely ‘explains the bill’ to the legislators within the framework of a certain ideology,and almost no one has read it.Who could forecast that if I signed a mortgage in a few years I’d have a $300,00 debt with a house valued at $100,000? That’s why there were supposed to be ‘fair’ legal constraints to begin with. From many points of view the mortages were perfectly ‘fair’ when they were signed.When things go wrong ideologues attack ideologues and those caught in a private mess due to public policy have no redress,and may find themsleves sorted into the scapegoat category .

    I learned in teaching very fast that there is no such thing as a fair way of doing anything except if you really trust the people,or person making the final judgment .My best definition of ‘fair’ is that if I take part in the process at hand I can be personally successful .

    As far as tax code is concerned, if ‘liberals’ pass it, its going to be a lot more fair in my view than if conservatives pass it.I now always would assume that in advance.But maybe not in future.Others have other formulas learned from their life experiences.

    So fair is 100% relative and defining fair in many measures of public policy has caused culture wars.And thats even when everything has been judged constitutional.
    Every one should watch Glenn Beck occasionaly when he gives his lectures on our sacred God-given Constitution.Also tune in to Rachel Maddow a few times when she does ‘constitution chat”.Then define what ‘fair’ means outside of any ideology.
    A fair tax policy and functioning government just don’t seem to go together.

  6. says

    In the Indiana legislature, in my experience anyway, some were more diligent than others in reading the legislation. From what I could see back then, Sen. Pat Miller – whose politics I generally disagree with, incidentally – was probably the most conscientious about really poring over the bills.

    Generally, I think they relied on the judgment of a few legislators from their own political caucus for any particular bill. What frustrated me sometimes was trying to explain the bill to an author and getting the feeling that they weren’t slowing down long enough to pay attention. These are busy folks with a high energy job, and sometimes I just wanted to yell, “STOP.” “LISTEN.”

    That’s just with the legislation I actually understood. I was fresh out of law school and asked to draft legislation in a wide variety of areas. Even the stuff I thought I understood, I’m sure had many consequences I didn’t anticipate.

  7. Don Sherfick says

    Besides the whole sometimes nonsensical arguments concerning strict construction and what it really means, this morning’s talk shows are already previewing the endless posturing and silliness about “judges following the law….not making it”. Those who mindlessly parrot that phrase generally have no earthly idea about what it really means. Because in the end it’s meaningless anyway.

  8. says

    Just one more point better linking fairness and constructive interpretation?
    What irks me personally about today’s conservatives is the strong tendancy to take no responsibility for consequences of their legislation if the legislation is seen as ‘constructive’. Constructive interpretation is seen as automatically fair and no one can rationally argue against it. In fact some have argued that if you’re ‘constructive’,that is literal,the way the framers intended, so there is no ‘interpretation’ .That’s also the same way Scripture is viewed..It’s papish,’ex cathedra’ type thinking,yet obviously can be a Protestant or secular phenomenum:”Don’t whine to us if things dont work out,we’re just pronouncing God’s will’ .


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