0

Source: Richard A. Posner, How Judges Think (2008), p. 191 Bottom - 192 Top.

p. 191

  [2.] "Strict construction" can mean interpreting statutes (and other documents to which legal significance attaches) narrowly, as in the old "canon of construction" that statutes in derogation of the common law are to be interpreted narrowly so as to minimize their inroads into that law. Or it can mean interpreting statutes and other documents literally, that is, according to the "plain meaning" of their words, without recourse to considerations of legislative history, real-world context or consequences, or other indicia of legislative purpose. Literal interpretations

p. 192

can be astonishingly broad. "Literal when narrow" may be the practical meaning of strict construction. The loose constructionist is a nonliteralist, [1.] but he does not necessarily favor broad interpretations of statutes or constitutional provisions, creating new judicially enforceable rights. [End of 1.] [2.] He could in other words be a practitioner of judicial self-restraint rather than of judicial activism.

  1. How is 1 true? Any examples?

  2. Can someone expound 2 please? How can Loose Constructionism facilitate judicial self-restraint?

2

A loose constructionist could choose to interpret a law in a narrow manner even if the literal interpretation is more broad. An example would be interpretation of the second amendment of the United States constitution:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The textualist interpretation is that the first half of the sentence doesn't actually change the right protected by the amendment, it just establishes some context. A loose constructionist interpretation is that the right to keep and bear arms is granted to the militia.

Whether or not you count this as judicial self-restraint or judicial activism is determined by what the original meaning of the amendment was thought to be. Assuming that to be unknowable, whether or not this interpretation is self-restraint or activism is more of an opinion than a fact. What one side sees as self-restraint: narrowly granting the right to keep and bear arms, the other side sees as judicial activism: changing what they believe the meaning is.

2

A loose construction seeks to apply the law to carry out its intended purpose, which may be narrower than the literal language of the law if it is inartfully drafted.

For example, suppose that a trespassing law prohibits "entering onto the property of another without their permission."

A strict constructionist might uphold a conviction of a FedEx guy for dropping a package off on your porch, since it is on your property and he did not have your permission (the package was sent by someone else and not a fulfillment of your order for something). Thus, the law is given a broad effect by being read literally.

A strict constructionist doesn't care if the law read literally criminalizes lots of conduct that ordinary, otherwise law abiding people, routinely engage in.

In contrast, a loose constructionist would probably conclude that the legislature did not intend this result and that the FedEx guy did not commit a crime, by reading into the law a requirement based upon legislative intent, that you must post a conspicuous sign saying "Delivery people may not enter and will be prosecuted for trespassing if they do.", to overcome an implied permission to enter from social custom in the absence of such a sign.

Loose constructionists want to avoid absurd results that arise from literal readings of statutes which were probably not intended by the people writing them.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.