What Am I, a Potted Plant? The Case against Strict Constructionism
RICHARD A. POSNER Judge, United States Court of Appeals, Seventh Circuit
Many people, not all of conservative bent, believe that modern American courts are too aggressive, too "activist," too prone to substitute their own policy preferences for those of the elected branches of government. This may well be true. But some who complain of judicial activism espouse a view of law that is too narrow. And a good cause will not hallow a bad argument.
This point of view often is called "strict constructionism." A more precise term would be "legal formalism." [On this view, issues] of the "public good" can "be decided legitimately only with the consent of the governed." Judges have no legitimate say about these issues. Their business is to address issues of private rights, that is, "to decide whether the right exists--in the Constitution or in a statute--and, if so, what it is; but at that point inquiry ceases." The judge may not use "discretion and the weighing of consequences" to arrive at his decisions and he may not create new rights. The Constitution is a source of rights, but only to the extent that it embodies "fundamental and clearly articulated principles of government." There must be no judicial creativity or "policy-making."
In short, there is a political sphere, where the people rule, and there is a domain of fixed rights, administered but not created or altered by judges. The first is the sphere of discretion, the second of application. Legislators make the law; judges find and apply it.
There has never been a time when the courts of the United States, state or federal, behaved consistently in accordance with this idea. Nor could they, for reasons rooted in the nature of law and legal institutions, in the limitations of human knowledge, and in the character of a political system.
"Questions about the public good" and "questions about private rights" are inseparable. The private right is conferred in order to promote the public good. So in deciding how broadly the right shall be interpreted,