I plead laziness. I’ve never head of the Administrative Procedures Act, and so would have to research it to give an opinion.
Dang, Gadarene, you stole my drive-by.
Not about the Administrative Procedures Act; the other one, about Scalia being a liberal.
That freakin’ commie bastard. 
His vote with the majority on this does seem to smack of a results-focussed variation in his strict constructionist principles. Any strict constructionists around here care to offer a rationale for Antonin? John Mace? Bricker?
Anybody? Bueller?
Scalia isn’t a strict constructionist. He’s a textualist (first) and an originalist (second).
He usually gets it right, but he got it wrong this time. I still prefer him over someone who gets it wrong more often than he does (like Stevens).
Thanks for the clarification.
Um…explain the difference between a strict constructionist and a strict textualist for me, other than that the latter is a subset of the former? Me no understand your big terms, so casually and confidently deployed.
E.g., from the Justice himself:
Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 521 (1989).
See also Bradley Karkkainen, “Plain Meaning:” Justice Scalia’s Jurisprudence of Strict Construction, 17 Harv. J. L. & Pub. Pol’y 401 (1994); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231 (1990).
I should note that, in a later book, Scalia does distinguish textualism and strict constructionism, calling strict constructionism “a degraded form of textualism that brings the whole philosophy into disrepute.” Antonin Scalia, A Matter of Interpretation (1997), p. 23. But in this context he’s making it clear that he views “strict constructionism” as excessive literalism – which, per previous threads, is definitely not the way you and Bricker use the term, John. Under your rubric, Scalia’s brand of plain meaning textualism is absolutely a strict constructionist philosophy (as he acknowledges himself in the passage I initially quoted).
And Heart of Atlanta. And Brown v. Board. And Loving. And Griswold. Hell, let’s just go back to segregating blacks, regulating homosexual sex, and making it illegal to use contraception. Let’s ignore years of precedent and get back to the good old days when we could tell people what to do in their bedrooms and where being in the majority really meant something!!!
My understanding is that “strict constructionism” results in an absolute reading of the text, without any interpretation at all. For example, if the constitution authorizes Congress to create and fund an army and a navy, it cannot fund the marines or the airforce. Originalism would understand that the intent was for Congress to be able to fund the military, and that the marines and air force are simply another branch of the military.
So Bricker’s not a strict constructionist, then. Fair enough. Can you point me to any judge who would qualify as a strict constructionist under your view? And if not, what the heck’s the point of articulating a judicial philosophy to which no one adheres?
(Putting aside the fact that “without any interpretation at all” is, in a literal sense, an impossible task.)
Why should I? I’m not the one throwing that term around. I would suggest that Kaylasdad, who first brought it up, should tell us what he means by that term, why he used it as he did, and who the examples are. My guess is that he used it as interchangeable with “textualist” and/or “originalist”. IOW, if he doesn’t clarify I’m willing to take a non-cosntructionist view of his post. 
Did Scalia write anything in support of the majority opinion? If not, we’d just be guessing at what his motives were. Probably, we should just assume that he agreed with the reasonoing of the majority opinion.
It strikes me that the clarification for which I thanked John Mace above didn’t so much clarify anything as further obfuscate matters. Perhaps the fault is mine, and I wasn’t clear enough on what I wished to learn. Allow me to try again.
I had formed the impression that those legal Dopers who champion strict constructionist decisions are admiring of Scalia because his approach to deciding the questions before him predisposes him against focusing on the outcome of the case, and toward focusing on whether the procedures have been properly adhered to. This is the approach that Justice O’Conner’s dissent appears to take, even though her way would have the result of allowing the individual states to regulate medical marijuana in their own ways. I’m really interested in knowing whether Scalia’s vote with the majority strikes his fans as sacrificing his judicial principles in favor of an outcome presumably more in line with his personal social views.
If not, why not?
Probably, you should read the blessed opinion. (warning: .pdf file)
I’m just telling you that your definition of “strict constructionist” doesn’t comport with its general usage as a legal term of art. You seemed to speak with such authority in dismissing the idea that Scalia was a strict constructionist, I wanted to clarify things for your edification. Strict constructionism, or narrow constructionism, is a self-identification of many textualists and originalists – and they don’t mean it in the sense of absolute literalism, 'cause that would be silly. During his first term, President Bush stated repeatedly his intention “to put strict constructionists on the bench.” Elisabeth Bumiller, Bush Vows to Seek Conservative Judges, N.Y. Times, Mar. 29, 2002, at A24. While to some “strict constructionism” may carry with it the normatively negative connotation of hyperliteralism, for most it’s just a handy and neutral descriptor for judges who will interpret a statute in accordance either with its plain meaning or (if such can be found, and to the extent that it alleviates the possibility that the plain meaning of the text will bring about a clearly contraindicated result) the plain meaning of the intentions of its drafters. In this respect, Scalia is certainly a strict constructionist, or else the term has no useful application to the real world.
If it’s a self-identification, and Scalia has explicitly said he is NOT one, then how can one reasonably call him that?
You’re not seriously citing George Bush on matters of language, are you? I wouldn’t expect him to use that term correctly. Can you offer a cite, rather than just your own opinion, of the definitions that we’re bandying back and forth?
If I look at Wikipedia, Originalism is defined as being distinct from Strct Constructionism:
Now, I recognize that Wiki is the be all and end all on the subject, and I’d be glad to review any cites you have from more authoritative legal sources.
sigh Whatever, John. Originalism is not, per se, strict constructionism. Textualism is. You’re arguing against a point I didn’t make.
Cites a’plenty coming up. But still, answer my question: are there any strict constructionist judges out there, in your view? Who are they?
From your Wikipedia quote:
This, by the way, describes Scalia’s professed jurisprudence to a T.
One more post before I hop on Lexis: Part of the problem here is that “strict constructionism” is kind of a broad and empty phrase, even by the broad standards of constitutional and statutory interpretation. Virtually anyone can claim to be interpreting a statute “strictly,” and virtually anyone can distance, almost by definition, their own interpretation from one that is “overstrict.” It’s much more helpful to say that someone is a “strict” textualist (like Scalia, generally) or originalist (like Thomas) or pragmatist (like Rehnquist) or minimalist (like O’Connor), or that someone (like Breyer) believes that legislative history is the superior interpretative tool. Being a “strict constructionist” tells us nothing about the ways in which someone interprets statutes and the Constitution, except as defined against alternate interpretations which are either “reasonable” (if strict constructionism is being used as a pejorative) or “activist” (if it’s being used in a positive manner).
…And so what I’m giving you is the common parlance of the term, acknowledging that it’s fairly diffuse if you try to pin it down without reference to textualism (which is most often described as strict constructionist), originalism, or whatever.
(Gotta finish my thought before I hit post, next time.)
Well, god damn it, another perfectly good pit-thread ruined by a great debate.
By liberal or conservative judges I was referring to how strictly they interpret the Constitution, not in a political sense, and I was actually suprised to see Scalia vote the way that he did.
Anyway, plnnr, etc., hilarious work. I tried a bit in the OP, but your post was really the cause for some inappropriate non-stop giggling.
mhendo, I’m not trying to say that there aren’t people on both sides that are taking a reasonable response to this decision. I just decided to throw up a random example from both sides of people pretending that this was a decision on marijuana itself for the court. I actually decided to start this thread after watching The Daily Show with Jon Stuart where they had someone from NORML that expressed disappointment in the verdict but immediately said that NORML’s efforts would be focused on the legislature from then on out. I’m not saying that everyone is being a dumbass.
But when discussing matters of the law, and the justices themselves, shouldn’t we be using words according to their precise meaning? Here’s an excerpt from an interview with Kevin Ring, author of Scaila Dessents:
My emphasis. And note how he corrects the interviewer’s assumption that he (King) had characterized Scalia as a strict constructionist.
Right. So Scalia there is defining “strict constructionist” as “something it is bad to be.” Fine. In that case, I maintain that it’s essentially null-set. Nobody wants to be something it’s bad to be.
But as a matter of constitutional and statutory interpretation, I stand by what I said: strict constructionism is not an interpretative philosophy. Rather, it’s something to be contrasted with “judicial activism.” Nobody wants to be called a judicial activist, many people self-identify as wanting strict constructionism (albeit not in the sense of literalism-to-the-point-of-absurdity), but it’s a normative term rather than one describing the process by which a judge decides a case. Used as you’re it, it’s a critique rather than a choice of jurisprudential tools. Emphasizing text over legislative history is a choice of jurisprudential tools. Emphasizing changed social context over original intent is a choice of jurisprudential tools. Once the tool is chosen, it can be deployed in a strict manner, in a “reasonable” manner (whatever that means), or in an activist manner. One can interpret text narrowly (or strictly). One can interpret text broadly (or loosely). If anything, strict constructionism as described is the too-rigid use of one interpretative tool to the exclusion of others.
I understand that this has gone afield of the original exchange – fine. Scalia’s not a strict constructionist (according to his own definition of the term) if he says he’s not. You’re right; kaylasdad was wrong. But using that definition, it’s a normative term…and not a helpful one.