On the Impossibility of “Strict Construction” in Constitutional Interpretation

I have no particularly strong view with respect to the constitutionality of the execution of adolescents. I do feel strongly that arguments for categorical death penalty abolitionism based on the 8th Amendment are incorrect, but with respect to the more limited question the constitutional text and doctrine neither prohibit nor compel yesterday’s ruling. I would probably therefore support it for pragmatic reasons, but there are good arguments against that.

One argument that is not good, however, is the claim advanced by James Joyner that a “strict constructionist” reading of the Constitution demonstrates that yesterday’s ruling is wrong. The whole idea of a “strict constructionist” reading of most parts of the Constitution is absurd, and there can be no better illustration of this than the cruel and unusual punishment clause of the 8th Amendment. Since the Constitution inconveniently omits any definition of the broad terms “cruel” and “unusual.” a “strict construction” of the 8th Amendment gets you nowhere; some external source must be use to determine how these principles are to be applied to a concrete case. In addition, one will also note that the text of the Constitution does not say whether it should be interpreted “strictly” or “broadly” or anywhere in between; in this sense, “strict constructionism” in this context is self-refuting. Moreover, it is strange indeed that framers who wanted a “strict construction” would frame so many constitutional clauses in broad, abstract terms that would obviously allow for significant discretion. Strict constructionism might make sense had the framers listed a series of specific punishments that were unconstitutional, but not wanting a Constitution that would be obsolete before the ink was dry, they didn’t. Strict constructionism is useless in resolving any constitutional question of interest.

Of course, this is not (to put it mildly) a novel insight on my part; John Marshall said as much in 1824. Here are the anti-strict constructionist ravings of another Trotskyite:

“Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be–though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” –Antonin Scalia, “Common Law Courts in a Civil Law System.”

And, of course, Joyner isn’t really a strict constructionist either. For obvious reasons, he makes no effort to demonstrate that the text of the 8th Amendment will not allow yesterday’s ruling. Rather, he basically uses the same logic as the majority:

The 8th Amendment was ratified in 1791. The fact that 19 states still allowed youth executions until this morning belies the argument that the citizenry considers the practice cruel.

So, the problem is not with trying to determine a national consensus, but an empirical disagreement about whether there is one. That is a solid argument, but it ain’t strict constructionism. The fact that the Amendment was ratified in 1791 might lead to an originalist argument, but has no bearing on the text itself. (The 8th Amendment, of course, poses obvious problems even for more sophisticated versions of textualism, such as Scalia.) Similarly, Steven Taylor’s claim that there is “no constitutional basis” for the decision is simply question-begging. The 8th Amendment certainly presents a plausible textual basis, although of course one can disagree with the decision for various reasons.

None of this is to say, again, that there aren’t good reasons to oppose the decision. But “strict constructionism” isn’t one of them. And the claim that there was no basis in the text of the Constitution for the majority’s ruling is plainly wrong.