Is a Strict Constructionalist Possible?

Is it possible for a judge to follow the Constitution and legislation in a strict manner where the results would be predictable and objective?

It seems to me that because of gaps in the law and contradicting precedents that this is impossible. It seems that our law is determined solely by judges. Because legal concepts and cases can be determined any way that a judge wishes, our justice system is nothing more than political in nature.

Agree or disagree?

Kurt Godel showed that a logical system as simple as the real number system had to have inconsistencies within it- contradictions or undecidables (this is a great simplification). See:

As the constitution is considerably more complex- relying on interpretation through Common Law and also by other intervening court cases, it cannot possibly be complete or free from contradictions.

Will this end this thread, or shall we discuss what level of uncertainty people have and will accept in the constitution’s interpretation.

Well, I was trying to focus more on whether there really is anything guiding the judicial decisions. Is it possible for a judge to be objective when deciding a case? That is, can a judge make his/her decisions by looking at the settled law, or does a judge make a moral decision everytime by interpretting the law in whatever way he/she wishes?

To quote Tom H from the Gladiator DVD Pit thread:

“[E]ven a strict construction is still a construction and deciding how to apply the law entails deciding what the law is.”

Just his sense

TexasSpur…Well, I agree to some extent. I think it would be very hard to have a strict constructionist interpretation about laws affecting the internet. I also think that strict constructionist interpretations of some other Constitutional issues are possible but stupid because societies evolve. The Founding Fathers created a society that was, in many ways, very radical for the time, but is now in many ways very backward (slavery as the most obvious example). A strict constructionist view, at least carried to the extreme almost guarantees that we always remain backward in these ways, rather than radical like our forefathers were for their time (except, I suppose, through the process of Constitutional amendments).

But, I think it is a little too strong to say that the whole judicial system is completely politicized (although the recent election involving the FSU and SCOTUS did make it look that way). Relatively speaking, judges are more insulated from politics than the other branches of government. And, there is still a pretty strong tendency to follow precedents.

So, if you are looking for a completely objective way to interpret the Constitution and the law, good luck. But, I don’t think that is reason to adopt an attitude that the judicial branch is completely politicized and basically no better in any way than the other branches of govt. I still think it serves an important purpose.

I guess to expound a little further on what I am talking about, I am reading about the political philosophy of Critical Legal Studies. It is their position that “rule of law” does not exist. They believe in “rule of judges”. They also say that following precedent provides very little in the way of constraining legal reasoning because the precedents can be determined in any way the judge wishes. I do not exactly agree with them, but I am having a hard time formulating my opinion on why I do not agree with them.

Hmmm…Interesting. I didn’t know that this whole legal school of thought even existed, at least in such a formal sense, but now that I did a search in Google, I see it is there. Reading the very short summary at the web page , I have to admit to finding their view of how the law works to be true to at least a fair degree. (For those that have more time, that page has a link back to the main page from which it looks like you can read a whole lot more about it.)

To my mind, Critical Legal Studies is little more than a conspiracy theory. To (grossly) paraphrase their POV - them mean old white male judges will always screw the little guy because the judge’s goal is to preserve the status quo.

CLS has been useful in encouraging the exploration of relationships in the legal setting, but the theory itself is bunk.


*We can think of a system of law as a community’s attempt to realize human ends. This presupposes a description of the good and bad in human nature: what people want from their lives and what their limitations are. This description necessarily involves privileging of certain aspects of human nature over others. Later, we justify our system by claiming that it is the best, given the natural constraints of the human condition.

For example, an advocate of laissez-faire might argue that, given the natural self-interestedness of people, unregulated market transactions are the best way to realize human goals. But the deconstructive critique reminds us that our social vision and system of laws are not based upon human nature as it really is, but rather upon an interpretation of human nature, a metaphor, a privileging. We do not experience the “presence” of human nature; we experience different versions of it in the stories we tell about what we are “really like.” These stories are incomplete; they are metaphors and can be deconstructed. Too often we forget that our systems of law are based upon metaphor and interpretation; we mistake the dominant or privileged vision of people and society for real “present” human nature, as Rousseau confused speech with the presence of thought.

At that point, the metaphor becomes mistaken for what it describes. But latent within the metaphor is a countervision that can be located and brought to the surface through deconstruction. It exists within the privileged conception because the latter ultimately depends upon it in a relation of differance.

Any social theory must emphasize some human values over others. Such categorizing necessarily involves a privileging, which in turn can be deconstructed. But the goal of deconstruction is not the destruction of all possible social visions. By recalling the elements of human life relegated to the margin in a given social theory, deconstructive readings challenge us to remake the dominant conceptions of our society. We can choose to accept the challenge or not, but we will no longer cling to our social vision blindly. Nor can we assume that this vision is the “real essence” of human nature because that would be a claim to have experienced presence, an experience that Derrida denies that we can ever have.

As Robert Gordon has observed, people “build structures, then act as if (and genuinely come to believe that) the structures they have built are determined by history, human nature, economic law.”* Deconstruction allows us to see that ideologies are signs or metaphors that describe social life. They are privileged conceptions of social reality; they are supplements, which can in turn be supplemented. Like Derrida’s signs, they are not self-sufficient, but ultimately depend upon the very aspects of human life that they deny and from which they differentiate themselves. Every ideology suffers from an elementary lack: its dependence on what it denies, on what it is exalted over. This lack, this differance, is what we seize upon and exploit in a deconstructive reading.

We now see that the legal deconstructor deconstructs ideologies, which are manifested in particular legal doctrines. By challenging what is “given,” deconstruction affirms the infinite possibilities of human existence. By contesting “necessity,” deconstruction dissolves the ideological encrustations of our thought.

Let us consider, as an example, a published opinion of a judge appearing in a case reporter. What is the legal effect of this opinion on subsequent cases? The simple theory of interpretation would suggest that (if the precedent is binding) what the judge/author intended is the principle that controls succeeding cases. However, this will not do. The intent of the author does not control, but rather the interpretation of the author’s intent as derived by subsequent readers of the text controls. It is the text as read, and not the text as written, that becomes the law.

In addition, the Rule of Law is based upon the premise that it is not the individual wills of people that control, but laws passed by elected representatives or case law construed and developed by judges. Rule by the arbitrary will of persons would violate the Liberal principle of autonomy;* social coercion is not achieved according to arbitrary will, but according to general, equally applicable rules. Once the rules are established by the governing authority, the rules constitute the authority for deciding cases. Thus, the Rule of Law presupposes that texts rule, and not the persons who created them.

Of course, in deciding the proper application of the rule, we look to the purpose of the governing body that created it. However, that body may not have had a single purpose or it may not have explicitly considered the factual situation at issue. Indeed, many of the legislators may not have read the measure thoroughly before voting on it.
The “purpose” used by a legal interpreter or decisionmaker is not the pure present purpose of the creator of the legal text. Instead, it is a constructed purpose: a reading of the text (a statute or decision) and of other texts (legislative history) in a particular context. The “purpose” that we discover and use in the application of a legal rule comes from texts, and not from the author.*

Sorry, link directly above is screwed…needs clipping.

Without pretending to speak for this particular theory, since all I know about it is what I read in about 3 minutes, I wonder if your interpretation of it as a conspiracy theory may be a little oversimplified. I sort of doubt that they mean in some literal sense that each judge wakes up in the morning and says, “You know, I think what I will do today is preserve the status quo by screwing the little guy.”

It is probably more a question of the influences on judges and the legal community as a whole which, although more insulated from the political realm than say the legislative and executive branches, surely must be influenced by it to some degree. And, I don’t think that believing that wealth and power dominate in the political realm is “conspiracy theory”…It is much closer to common sense. (Although clearly not “common sense” shared by everybody, since if you read aynrandlover for example, you will get the impression that government is a system by which the poor and middle class masses oppress the rich!)

jshore - my comment was more than a little oversimplified, it was waaaay oversimplified. I’ve done my share of reading of CLS, and I do give it credit for putting to the forefront the fact that the people involved in the legal system are humans, with human motivations and foibles. It’s CLS’ conclusions that draw my ire.

The first aspect that irritates me is that it adopts almost wholly a pure class warfare look at the world. The second, related problem is that it treats the people in the legal system as essentially pre-programmed - the results they reach are predetermined by their relationships and interests. Ike thought that about Warren; Bush thought that about Souter. They were wrong.


Yeah, there is certainly some value to keeping in mind the critical legal studies axiom that law is just politics—doesn’t do to lose sight of our cynicism for too long! But as a methodology, I have the same problem with critical legal studies that I do with other forms of postmodernism, such as postcolonial studies in history. Namely: once you’ve pointed out that the decisions and opinions of the people in power are always influenced by their desire to remain in power, then what? It may be perfectly true, but is it interesting? It seems to me that the postmodernists far too often treat this issue as the only important one, instead of just something to be added into the mix of reasons why decisions get made and opinions get formed.

(Bruce Ackerman wrote an interesting essay in the American Prospect touching on the possible effect of Bush v. Gore on current legal theory: )

TXSpur, maybe in order to clarify the objections you have to CLS you should look at some works of Ackerman’s or Andrew Altman’s.

Note added in preview: Yeah, what Sua said.


I would answer your “then what(?)” question with the obvious answer to vote differently if necessary. As for boring post-modernism, well, there is always an alternitive or two:


Thanks for the suggestions.
One of the main objections that I have with CLS is that it does not seem to give us any constructive criticism only criticism. It does not seem to prescribe a solution.

Okay, it’s a contribution from a late arrival, but I figured I’d toss in an example of the silliness of strict constructionism that was once offered by my Con Law prof.

If you take a look at your handy-dandy copy of the U.S. Constitution, you’ll see that Article I, section 8 grants Congress the power to “raise and support Armies” and “provide and maintain a Navy.” Similarly, Article II, section 2 says that “The President shall be Commander in Chief of the Army and Navy of the United States…”

So where the hell do the feds get off having an Air Force?

And that, friends, is why strict constructionism is silly.

TexasSpur, here’s what Justice Felix Frankfurter had to say about the apolitical judicial ideal:

West Virginia Board of Education v. Barnette (1943), dissenting
Of course, even of the justices who claim to hold this philosophy (which isn’t all of them), he’s one of the only ones who can really be said to have lived up to it.

As for the type of strict constructionism minty green mentions–which is substantively distinct from the question posed in the OP–I’ve got two words in support of him: Ninth Amendment. 'Nuff said. :slight_smile:

Are we all in agreement that the “rule of law” is, in fact, the rule of judges or is someone going to dispute this?

Just my 2sense

Here’s a disputation, 2senseshould judges strive for the kind of self-consciously detached viewpoint held by Frankfurter? Or is it better that they let their personal instincts guide their judgment to some extent?

Frankfurter was speaking in reference to a decision overturning the constitutionality of mandatory flag salutes–a constitutionality which had been determined in an opinion written by Frankfurter several years before, and one which had prompted repeated acts of violent persecution against Jehovah’s Witnesses. Even knowing the repercussions of his prior decision, and despite understanding discrimination firsthand as German Jewish immigrant, Frankfurter stuck by his philosophy of hands-off jurisprudence as the other justices recanted their stance. Is this admirable or isn’t it?

CLS seems quite a bit more interesting and useful than many of the above comments would suggest. The axiom that

…is only the beginning. Kimstu quite rightly asks, “then what?”

The “what” is the recognition that the powerful can maintain the status quo in any one of a myriad of different ways, as even the most cursory social history text would demonstrate. The real question becomes, "why did this particular system develop (descend, to use Foucault’s term) the way it did? Simply answering this question with an appeal to class warfare is most unsatisfying.

Hence the following is the crux of CLS:

“Laws” are not intrinsic properties of the universe, but products of human ideology. Like all incarnations of postmodernism, the CLS method is used to open up these ideologies and pick at their innards.

This method, by definition, cannot be constructive: all practitioners of postmodernism are acutely aware of the myriad of forces that are acting upon them. To construct anything that could so easily be deconstructed would be hypocritical.

As a budding scholar, I am thrilled that postmodernism is not quite so de rigeur in my disciplines as it used to be. As interesting and useful as I think it is, I am still waiting for something better to come along.

Anyone want to try his/her hand at deconstructing Antonin Scalia? :smiley: