At Legal Theory Blog, Larry Solum has this entry in the Legal Theory Lexicon: Strict Construction and Judicial Activism. From the introduction:
This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that sometimes seem to have very little content as used in popular discourse.
A case can be made for a revised and conceptually more coherent version of each of these concepts. Whether constitutional theorists will be able to agree on consistent and clear definitions remains to be seen.
After extended discussion of the problems with each term:
Can we rescue these concepts? Here is a proposal for coherent and clear definitions:
Strict Construction as Judicial Constraint by the Text and Judicial Restraint If Language is Unclear. We might define strict construction as the conjunction of two distinct ideas. The first element would be constraint by text. Thus, a construction would not be strict if it was inconsistent with the linguistic meaning of the text of a statute, constitution, or other legal text. The second element would be constraint in cases where the text was not clear, e.g., where the text was vague, open-textured, or otherwise lacked a clear and discernible meaning.
Judicial Activism as Judicial Invalidation of Action by Legislative or Executive Officials. This definition has the consequence that "judicial activism" would, for many constitutional theorists, be a value neutral term. Many constitutional theories favor judicial activism in the stipulated sense: for example, originalists favor judicial activism when the original meaning of the constitutional text requires invalidation of a statute enacted by Congress.
The first definition works for me (and therefore I'm not a strict constructionist because I think context must be considered). The second seems too, well, strict. I would say judicial activism is judicial invalidation of action by legislative or executive officials when the judicial action is not supported by a convergence of conventional legal materials.
And from the conclusion:
This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. The vocabulary of constitutional theory is itself contested. Phrases like "strict construction" and "judicial activism" are normatively fraught, but they may not be well defined.
For that reason, it is very important for constitutional theorists to be very careful about their use of language. If you use these phrases, then be sure to define them!
Posted at 6:04 AM