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January 12, 2006

Alito and strict constructionism

GRAHAM: Are you a strict constructionist?

ALITO: I think it depends on what you mean by that phrase. And if you...

GRAHAM: Well, let's forget that. We'll never get to the end of that.(LAUGHTER) Have you heard the term used?

ALITO: I have heard the term used.

GRAHAM: Is it fair to say that, when it's used by politicians, people like me, that we're trying to tell the public we want a judge who looks at things very narrowly, that doesn't make a bunch of stuff up?

Is that a fair understanding of what a strict constructionist may be in the political world?

ALITO: Well, if a strict constructionist is a judge who doesn't make things up, than I'm a strict constructionist. (LAUGHTER) ...

ALITO: I think that a strict constructionist as you understand it would engage in a certain process in evaluating that question. And a strict constructionist, a person who interprets the law -- that's how I would put it -- a person who interprets the law would look at the language of the authorization for the use of military force and legislative history that was informative, maybe past practices. Were there prior enactments that are analogous to that? What was the understanding of those? And a host of other considerations that might go into the interpretive process.

If a "strict constructionist" looks at precedent, legislative intent, "past practices," and a "host of other considerations," then strict constructionism means nothing at all. Judge Alito clearly doesn't like the phrase--perhaps because it's too controversial, or perhaps because it's vacuous. But could it be a meaningful theory? I suppose it could mean:

1. A judge should deliberately refuse to consider all the matters that Alito listed above, except the text of the relevant statute or constitutional provision. It is improbable that anyone can understand a text without some recourse to context, but trying to do so would be the judge's intent.

2. A judge should apply the law regardless of its consequences. In moral philosophy, "consequentialists" are those who would assess actions or policies by their results. "Deontologists" instead apply principles or rules, without directly considering consequences. It was a consequentialist Supreme Court that ruled that public schools could not be segregated by race because segregation had bad effects on minority children. A deontological court might have said that barring any child from any public school on the basis of color, even if it has benign effects, always violates the Fourteenth Amendment. Strict constructionism would be a form of deontology in which existing laws (not morality) provide the principles to guide a court's decisions.

Judge Alito sounds like something of a legal deontologist some of the time. For instance, in defending his decisions regarding searches, he says that these police actions were harmful but allowed by the law. Note, however, that a legal-deontological approach would not always push in conservative directions. A strict constructionist (in this sense) could not argue that courts ought to enhance economic efficiency, nor could he defer to the president in order to promote national security. That would be paying attention to predicted consequences. The motto of the strict constructionist would rather be "Fiat justitia et pereat mundus": let justice be done even if the world should perish. (This is not a smart thing to say in confirmation hearings, however.)

January 12, 2006 8:34 AM | category: none


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