2012/08/15

Construing "strict construction"


It is a common mistake of modern readers to presume that a term used in many instances in a document such as the Constitution has the same meaning in each of those instances, but the 1787 users of English, and particularly legal English, were not that precise or rigid. For that matter, neither are people today. The meanings of terms can and do differ from one context to the next, within the same instrument, and not just because it was the work product of multiple authors.

Legal and constitutional exegesis is an advanced art that must regard words as evidence of meaning but recognize that the evidence is "holographically" distributed over the entire document and beyond. Our problem can be seen in illusions such as this one in which a pattern of light and dark patches is not recognized while still but becomes apparent when animated. When the Framers drafted the Constitution, they were imagining how the words would play out in use, and we must try to do the same when we try to construe them.

A literalist approach to interpretation doesn't work. Justice Antonin Scalia rejects it in his new book (with Bryan A. Garner), Reading Law: The Interpretation of Legal Texts, p. 355, where he calls it "strict construction". That is the meaning that term might have for some of its critics, but is generally not the meaning it has for its proponents, which has its roots in law Latin:
Ex tota materia emergat resolutio. The construction or resolution should arise out of the whole subject matter.

Quae communi legi derogant stricte interpretantur. Laws which derogate from the common law ought to be strictly construed. Jenk. Cent. 231.

Quod factum est, cum in obscuro sit, ex affectione cujusque capit interpretationem. Doubtful and ambiguous clauses ought to be construed according to the intentions of the parties. Dig. 50, 17, 168, 1.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

Potestas stricte interpretatur. A power is strictly interpreted.
Since a right is a restriction on delegated powers, and a delegated power a restriction on rights, from this last maxim we can conclude that a right against government action must be broadly interpreted, and the presumption must be in favor of such a right. See Presumption of Nonauthority and Unenumerated Rights.
Potestates stricte interpretantur, iura late. Powers are to be interpreted strictly, rights broadly.

Potestates enumerantur; multis iura non enumerata. Powers are enumerated; many rights are not enumerated.
So from our Latin heritage we can construe "strict construction" (stricte interpretantur) not as literalistic but as strict for delegated powers and broad for rights against such powers. The implication is that the courts must never defer to Congress in its claim to exercise a power, and always require strict proof of its authority for such power, lacking which the presumption must be that it does not have the power.

That only leaves the ambiguity of powers delegated to protect rights. Is such a power to be construed strictly, or does it borrow some of the broadness of the rights it is to protect? It depends on which rights with respect to what, and the cost and risk of abuse. Generally, a power to protect rights against government should be construed broadly, and against natural threats or private acts should be construed narrowly. Otherwise every government would have general police powers, and the federal government does not. But that is a matter for future discussion.
Exerceatur constitutio, ruat caelum. Let the Constitution be enforced, [though] the heavens fall.

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