Sunday, June 4, 2017

Strict constructionism—beyond the chimera

I recently came across this article inthe New Yorker, which is ostensibly a book review but really servesto give a basic primer on the use of historical context in theinterpretation of law, specifically in the interpretation ofConstitutional law by the Supreme Court of the US. I had long had a vague idea that Scalia and Thomas were “strict constructionists”, but reading this article and subsequent dives into Wikipedia have nuanced my understanding better. It turns out that few real strict constructionists exist, since strict constructionism in its pure form would lead to absurd readings of law—even the late Scalia and Clarence Thomas disavow the chimera-like term, preferring instead things like “textualist” or “originalism” , which signifies something like strict constructionism but with some common-sense reference to context thrown in.

Ultimately though what this New Yorker article did for me was to move me beyond my very cursory and caricatural understanding to realize that all jurists can, should, and do use historical context to inform their decisions, and there are both advantages and pitfalls to such a historical approach, so it is a mistake to paint one group as sticking more truthfully to a text, and the other as wantonly twisting the law to suit their preexisting agenda. In fact, all legal interpretations rely on a mix of context, common sense, textual analysis, and yes, preexisting agendas. Lest my readers think this has led me to a more equanimous view of conservative legal decisions, it has not. In fact it has cemented my intuition that much of what is presented to the public as just an honest Justice viewing things dispassionately and objectively to arrive at the only logical conclusion, is in fact conservative judicial activism, which uses this claim to objectivity to paint itself as less activist and more legitimate than more progressive readings of the law.

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