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To: The Pack Knight
A strict constructionist takes the literal meaning of the language of the Constitution or statute without viewing it in its context.

I disagree.
Anyway, for purposes of political debate in 2008, "originalist" and "strict constructionist" are generally considered interchangeable ways of desribing a justice who believes that the Constitution should be "interpreted" strictly within the context of the framers' original INTENT.

64 posted on 01/18/2008 1:31:18 PM PST by Lancey Howard
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To: Lancey Howard
Neither originalism nor strict constructionism are concerned with the "Framers' Intent." Different framers had different intents for different parts of the document. Furthermore, the intent of the framers is meaningless, since the Constitution isn't their document. It belongs to people of the United States who ratified it. After all, it says "We the People", not "I, James Madison."

Originalism is not concerned with the framers' intent, but rather with the original meaning of the language of the Constitution when it was ratified. That's because those are the words that were voted on and ratified. The people who voted to ratify the Constitution (without whom the Constitution would just be an historical relic rather than the supreme law of the land) couldn't read the minds of the Constitutional Convention; all they had was the text of the document in front of them.

The truth is, we can't know what the "Framers' Intent" was any more than we can really know the legislature's intent when it passed a particular law. And, as Scalia likes to point out, "'legislative intent'... is a convenient cover for judicial intent."

Scalia refers to strict constructionism as "a degraded form of textualism that brings the whole philosophy into disrepute." In his book "A Matter of Interpretation", he uses a then recent Supreme Court case, Smith v. United States, to illustrate this point:

The statute at issue provided for an increased jail term if, "during and in relation to... [a] drug trafficking crime," the defendant "uses... a firearm." The defendant in this case had sought to purchase a quantity of cocaine; and what he had offered to give in exchange for the cocaine was an unloaded firearm, which he showed to the drug-seller. The Court held, I regret to say, that the defendant was subject to the increased penalty, because he had "used a firearm during and in relation to a drug trafficking crime." The vote was not even close (6-3). I dissented. Now I cannot say whether my colleagues in the majority voted the way they did because they are strict-construction textualists, or because they are not textualists at all. But a proper textualist, which is to say my kind of textualist, would surely have voted to acquit. The phrase "uses a gun" fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, "Do you use a cane?" you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway.


Where the strict constructionist is literalist, the textualist construes a text "reasonably, to contain all that it fairly means." Originalism, which is a form of textualism, construes the Constitution to contain all that it fairly meant when it was published and ratified. It has nothing to do with the Framers' intent, because the Framers' intent is not the law; the text of the Constitution is.
84 posted on 01/18/2008 2:07:05 PM PST by The Pack Knight (Duty, Honor, Country.)
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