May 10, 2004

The social significance of lexicography

Modern lexicography strives generally to be descriptive in its outlook, in contrast to terminology, which is much less averse to telling you how you ought to use words. However, modern lexicography is often presented with problems that verge on questions of critical theory. By acting as a structured but still descriptive discipline, it is forced to attempt to understand words in the way their users understand them. Without the benefit of telepathy, this problem quickly becomes a matter of ethnography and cultural anthropology.

A stunning example of this is provided by Brad Delong, commenting on a post at Legal Theory Blog:

Strict construction is short hand for the idea that the United States Constitution should be strictly construed. The phrase appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court.

The question is: what does strict construction mean? Is there really a method of constitutional interpretation described by the phrase "strict construction" or is this a mere political slogan? The confusion engendered by the term is illustrated by the following definition (offered on

strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

This definition borders on incoherence, opposing "strict construction" to both originalism and to the notion of a living constitution--ideas that might be thought antithetical to one another. So can we offer a better definition of strict construction?

Legal Theory Blog pursues a strategy of enumerating possible meanings, both for strict constructionism and for its presumed antonym judicial activism. This may well be good legal theory, but it is neither good lexicography nor especially good cultural anthropology:

  • Strict Construction as "Textualism". One possibility is that strict construction refers to textualism--the idea that all constitutional interpretations must be grounded in the text of the Constitution. There are two difficulties with this suggestion. First, almost all of the Warren Court jurisprudence to which strict constructionism was opposed was rooted in the text of the Constitution in some way. Even the "unenumerated rights" jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment. Second, this definition provides no content to the idea that constructions must be "strict."

  • Strict Construction as "Literalism". Another possibility is that strict construction involves literal rather than purposive interpretations of the constitutional text. Perhaps, a strict construction is one that reads each clause of the Constitution to mean what the plain language says and nothing more. This idea is more promising than textualism, because it gives some real bite to the idea of "strictness" in construction. The difficulty is that the proponents of "strict construction" (and others) have rarely advocated a thorough-going literalism. That approach would, for example, mean that the First Amendment to the Constitution applies only to Congress (and not to the states, the executive, or to common-law doctrines). Other provisions of the Constitution don't seem to have any determinate literal meaning--the due process clause, the privileges and immunities clause, and the republican form of government clause come to mind.

  • Strict Construction as "Originalism". Yet another possibility is that strict construction refers to some form of originalism, either original-intention originalism or original-meaning originalism. (The former looks to the intentions of the framers, whereas the latter looks to the way the text would have been understood by citizens when it was adopted.) Original-intentions originalism does not fit well with the label "strict constructionism" as it would allow courts to take into account intentions of the framers that are not "strictly speaking" in the constitutional text. The latter is a much better fit with the idea of strict construction, but the label "strict construction" is simply not very descriptive of the idea that the constitutional text should be read today in a way that fits the way it would have been read at the time it was adopted.

  • Strict Construction as a "Presumption of Constitutionality". Yet another possibility is that the constitution should be construed against challenges to the constitutionality of legislation or executive action. The idea of a presumption in favor of the constitutionality of challenged action is certainly a coherent idea, but it is not clear why such a presumption should be called "strict construction." One might naturally assume that a strict construction of the constitution would invalidate government action that contravened the meaning of the constitutional text.

We could go on, but I think you will now see the point. It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly description and better names can be given to the view that strict construction could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.

Judicial Activism
In conservative political discourse in the United States, "strict construction" is good and "judicial activism" is bad. But what is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase:

  • Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.

  • Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery. So activism is not meant to be equated with "deciding to strike down a statute or executive action."

  • Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.

And that's the problem with the phrase "judicial activism." One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.

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.

Constitutional theory is a value-laden activity. So much for the plain language of the US Constitution. I have to wonder if legal theory - like literature, anthropology, sociology and increasingly history - will ultimately have to face the questions that ultimately led to modern critical theory. Unlike literature, legal practice has immediate and discernable consequences, making the stakes a good deal higher than in most of the humanities.

Brad Delong, in contrast, shows himself to have a surprising natural disposition to the more cultural anthropology side of descriptive lexicography. Rather than mucking about with hypothetical meanings, he looks for a definition from those for whom labels of judicial activism and strict constructionism are readily transformed into concrete actions:

We can [define strict constructionism]. When William Rehnquist worked for Richard Nixon at his Justice Department, Rehnquist offered an alternative definition of "strict constructionism": a strict constructionist is a judge who is hostile to criminal defendants and to civil rights plaintiffs. Rehnquist was correct. The phrase "strict constructionist" is not meaningless. And it is not unimportant.

To quote another blogger with a legal background, indeed. There you have it, ladies and gentlemen: an issue of considerable social significance where a resolution can be found through the application of lexicography.

Posted 2004/05/10 12:30 (Mon) | TrackBack

There is a category of concepts which I've seen called "essentially-contested concepts" or "generic concepts" which is defined (i.e., the category is defined) by the fact that everyone agrees that they are good things, but nobody agrees about their definition.

Justice, freedom, and equality are examples -- you can make a big splash by calling any of them into question (e.g. Skinner: "Beyond Freedom and Dignity"), but few will accept what you say, so most arguments end up being about "what freedom really is" or "what is true freedom?". These arguments normally go around in circles without getting anywhere and often lead to a lot of shouting, sarcasm, etc.

So anyway: high-level legal argument is a way of deciding questions of this sort behind a screen of technical language and abstruse terminology, in accordance with rules that are somewhat open-ended and themselves contested. That is, basically you limit the participants in the game and report your reasoning in language few can understand (though the practical outcome of the decision of a case is usually clear enough.)

Terms like "strict construction" are ways to try to make one's fiat decisions on the practical definition of generic concepts seem as if they are grounded on something or another and as if they represent a consistent way of thinking. I know that Scalia despises O'Connor, even though they agree half the time, because she apparently makes no attempt to dress her decisions up in legal philosophy, but just follows her own common sense and gut feelings on a rather ad hoc basis.

To me the idea tracing back to Plato that terms like "justice" can be factually defined, like the definition of "pi" or the definition of "carbon", is an enormous delusion.

The best argument for the legal system (and sometimes also for a purely-pragmatic claim for Platonic truths) is that having some arbitrary way of deciding fundamental, factually-undecidable questions is preferable to civil war.

Posted by: john emerson / zizka at May 10, 2004 19:19

I remember someone in the days before the French revolution defending monarchism in the same way: Better a king, even an incompetent, arbitrary king, than anarchy and civil war. I take that as an optimistic sign - we can do better than monarchy these days, maybe one day we'll be able to do better than the courts.

Posted by: Scott Martens at May 10, 2004 22:22

Zizka reminds me of some comments I read about the Supreme Court a while back. The argument went like this (poorly paraphrased):

Society needs some questions or disputes resolved, to avoid violence.

It's best that the resolution be predictable, so people can make plans and invest (effort, or money) in the things they want to accomplish, without having to worry unduly about arbitrarily losing their investment.

As a result, precedent is incredibly important to the legal system, as a way of providing stability and predictability.

In any case where it's clear what the law says the outcome should be, the parties will typically not bother going to court (settlements in civil cases, plea bargains in criminal cases).

So only unclear cases go to trial.

Likewise, only really unclear cases (or ones where someone screwed up and didn't do their job) go to appeal.

The Supreme Court is the US ultimate court of appeals; as such, only *really* undecidable cases end up there.

Therefor, it's the Supreme Court's job to decide the undecidable, while preserving the illusion that all is predictable, if you only understand the law and precedents well enough. If the Justices openly flipped coins, that would reveal a fundamental unpredictability, which would be bad for business.

Posted by: Jeremy Leader at May 11, 2004 10:19

The swing vote in the Gore-Bush decision, Kennedy, explicitly said that avoiding turmoil was his motive. This is (to me) chilling, because he was judging (correctly, based on behavior) that the Republicans would be more certain to instigate serious trouble than the Democrats -- they were rewarded for their relentlessness and unscrupulousness.

At the end of Kafka's Castle Joseph K finally gains admittance to the room where the fundamental principles of the law are kept. He looks in the cabinet where they are installed and finds a few volumes of cheap po*n. (I've garbled that somewhat, but the gist is like that).

In Homage to Catalonia Orwell, as a reporter, asks the leader of one of the lesser royalist groups what his social program is. The guy is dumbfounded, buys time, and finally shuffles around in his drawer and says he knows it's in there somewhere. He has no idea what a social program is.

I think that Scalia knows all this but realizes that a very bright and diligent agent can do a lot by influencing the law. His own fundamental beliefs are (very) conservative Catholic and presumably in some ways inimical to the American tradition, but as long as he doesn't tip his hand he will be able to write a lot of stuff into American law.

Posted by: Zizka at May 11, 2004 15:34
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