Strict Construction and Judicial Activism

Posted by Anton Hughes on Wednesday, November 01, 2006 with No comments
It is amazing the extent to which you can find parallels to the patentability debate outside the patent law. I've been exploring the parallels with tort recently, but now in a discussion of constitutional law labelling, I find another parallel. The linked article discusses the concepts of 'strict construction' and 'judicial activism' which in conservative politics mean 'good' and 'bad' respectively.

Strict constructionism is:

"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"


The article, in pointing out that the term has no real meaning suggests that it could be taken to mean:

  1. textualism - grounding all interpretations in the text of the law/legislation
  2. literalism - literal rather than purposive interpretation
  3. originalism - looking at the original intention or original meaning of the framers
  4. a presumption of constitutionality (legality)

Judicial activism is defined as being either:

  1. Non-abstention - deciding cases whereas passive judges abstain
  2. Exercise of the power of judicial review
  3. Incorrect exercise of he power of judicial review
The author rejects all of these as useful concepts. But substitute in 'patentability' of 'constitutionality' and you start to see the parallels. The acceptance of policy in determining patentability is a kind of judicial activism (badness) in the mind of largely conservative judges. Their 'strict construction' of the manner of manufacture test, tied to the NRDC formula language amounts to a form of non-activism in the form of abstention.

Now for 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. For that reason, it is very important for constitutional theorists to be very careful about their use of language.

A very similar conclusion to that which I would reach in the patentability debate. It is a value-laden activity, which frequently involves extensions of policy debates generally. This requires a commitment by judges and academics generally to "clear explication" of underlying concepts.
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