Monday, April 17, 2006

Strict Constructionism vs. Judicial Activism

Larry Solum has a post on strict constructionism and judicial activism and he tries to define the terms. Basically he concludes that the terms are meaningless since no uniform definition can be applied that is helpful.

Interestingly, he distinguishes between textualism and "literalism" with the former meaning that a decision must be rooted in the text and the latter being construing the plain meaning of the text. I always understood textualism as interpreting the text according to its best meaning, which implies interpreting it based on its meaning at the time it was written (which is why textualism and originalism go hand in hand). My understanding is rooted in the idea that words can only have meaning if based on their objective, socially constructed definitions and those definitions only exist at the time the law was written.

I'll probably expand this argument in a later originalism post one day.

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