Coming to terms with strict and liberal construction.

Author:Mullins, Morell E.

    Strict construction and liberal construction are among the most difficult, muddled, and commonly encountered terms in cases involving statutory construction. However, as independent subjects of study, strict and liberal construction have received comparatively little academic attention.(1) Strict and liberal construction often are discussed incidentally, like an unavoidable speed bump on the path to the article's substantive topic,(2) or as a necessary part of reviewing the case law on the author's substantive topic.(3) Even when discussed on their own terms, strict and liberal construction typically are embedded in pieces dealing with a particular substantive area of the law, such as strict construction of criminal statutes.(4) Such treatment is understandable. Strict and liberal construction are elusive subjects. They seem to defy orderly study. At least two questions necessarily occur to anyone who examines strict and liberal construction as subjects in their own right. Are they justifiably neglected, because the concepts behind them are an incoherent mixture of slogans? Or, are the concepts behind them a complex and disorderly amalgam which nevertheless is coherent enough to be a worthwhile topic of study in examining the tools and concepts that are used in attributing "meaning"(5) to statutes?

    After discussing briefly the pervasiveness, pedigree, and chaotic surface of strict and liberal construction,(6) this article will examine the relation of strict and liberal construction to: (1) the literal wording of statutes;(7) (2) the implications and inferences of language itself;(8) and (3) plain meaning and legislative intent.(9) The article then will examine the relative nature of strict and liberal construction, and the way in which they are used, both improperly and properly, as substantive tools favoring particular purposes, policies, results, and parties.(10) Final]y, some justifications and safeguards for using strict and liberal construction "in favor of" certain purposes, policies, results, and parties, will be discussed.(11)


    1. Pervasiveness and Perversity

      "Strict construction" and "liberal construction" are among the most frequently encountered terms in cases involving the interpretation and application of statutes.(12) They are also among the most pervasive, in the sense of appearing in a wide range of statutory settings. They are not limited to any particular type of statute. If American Jurisprudence 2d is an accurate barometer, strict or liberal construction can be found in cases arising under statutes spanning almost the entire alphabet--from Adoption(13) to Unemployment Compensation.(14)

      Although their pedigree is venerable, going back at least to 1781 in this country,(15) the "meaning" of strict and liberal construction remains fuzzy.(16) Moreover, as topics in and of themselves, they seem to have excited comparatively little interest among academics.(17) Often, strict and liberal construction are just mentioned in passing, in the course of discussing cases which use one of these terms.(18) At other times, they seem to be discussed only to the extent necessary, as an unavoidable aspect of addressing the article's substantive topic.(19)

      Even when the title of an article suggests a focus on strict or liberal construction, there may not be much examination of the concepts themselves.(20) The implication seems to be that it is easy to understand what these terms mean.(21) When strict and liberal construction are discussed in anything approaching depth, the discussions typically are embedded in pieces devoted to a general or particular substantive area of the law, such as strict construction of criminal statutes,(22) or their use in connection with a particular type of statute.(23) Seldom do strict and liberal construction seem to be examined in any depth or at any great length, on their own terms.(24)

      Moreover, strict and liberal construction (and the courts which use them) often seem to be targets of barbed criticism contained in dismissive remarks. For example, Justice Scalia has described liberal construction of remedial statutes as being "among the prime examples of lego-babble."(25)

      Strict construction has also had its share of critics, although the most vigorous criticism seems to occur more often in constitutional theory(26) than in statutory construction. Still, referring to strict construction of criminal statutes, one author said, "it appears in a string cite of bromides so various and inconsistent as to have no collective meaning."(27) In the same article, the author called strict construction "a makeweight for results that seem right."(28)

      Some significant articles touching on strict construction of criminal statutes may contain the ultimate insult. They have partly abandoned the term "strict construction" itself. Perhaps following in the Supreme Court's footsteps,(29) the articles have rechristened "strict construction" in the criminal context as the "rule of lenity."(30)

      The traditional rule for construing criminal statutes is the rule of lenity, a name given to a common law principle that "penal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed."(31) However, the new label has not spared courts (and the concept) from being the targets of disparaging remarks. "Judicial enforcement of lenity is notoriously sporadic and unpredictable."(32)

      The barbs are not limited to pieces dealing with criminal statutes. Criticism of "strict construction" occurs in articles on other substantive subjects, such as Supreme Court cases involving statutes waiving sovereign immunity(33) and civil RICO actions.(34)

      Judge Richard A. Posner has suggested the possibility of some ideological influences on judicial attitudes toward strict and liberal construction.(35)

      To construe a statute strictly is to limit its scope and its life span--to make Congress work twice as hard to produce the same effect. The letter killeth but the spirit giveth life.... It is not an accident that most "loose constructionists" are political liberals and most "strict constructionists" are political conservatives. The former think that modern legislation does not go far enough, the latter that it goes too far. Each school has developed interpretive techniques appropriate to its political ends. But as I said earlier, I know of no principled, nonpolitical basis for a court to adopt the view that Congress is legislating too much and ought therefore to be reined in by having its statutes construed strictly. I add now that such a view would be a form of judicial activism because it would cut down the power of the legislative branch; and at this moment in history, we do not need more judicial activism.(36) A major detractor of liberal construction, Justice Scalia, has implied that courts use liberal construction to reach the results they want to reach.(37) He even has suggested that nobody really cares what "liberal construction" of "remedial" statutes means.(38)

      Perhaps all of this negativity, and more, may be justified. Perhaps such indictments of the two concepts, and the judges who use them, fairly reflect the realities behind the labels "strict construction" and "liberal construction." Certainly, it would be easy to form an impression that strict and liberal construction are dubious concepts. It would be easy to conclude that behind the words "strict" and "liberal" construction is the kind of incoherence which some academics attribute to terms such as "legislative intent."(39)

      Nevertheless, before consigning strict and liberal construction to whatever academic perdition awaits bad legal doctrines, or criticizing wholesale the judges who use them, a few nagging points must be mentioned. For one thing, the persistence and pervasiveness of these terms in statutory construction cases counsel against dismissing or ignoring them too easily. For another, sheer longevity should be a clue that they might be more than empty concepts, devoid of content.(40) They may even be more than "canards."(41) Phenomena that have a long history and that are so pervasive deserve serious research, study, and consideration in their own right.

      Finally, if nothing else, there are many cases where, intuitively, we have a feeling that the terms "strict" and "liberal" construction seem appropriate. One of the articles previously mentioned flirted with this possibility when it referred to strict construction as sometimes being "a makeweight for results that seem right."(42) This raises a significant question: why would the results "seem right" in these cases? Perhaps there are many cases where the results seem right because strict and liberal construction often are a valid part of the statutory construction enterprise. Properly conceived and used, they may be integral to the case. Very often, "strict" and "liberal" construction aptly describe operative concepts which, if not determinative, are at least relevant to a problem of statutory construction.(43)

      Without much guidance from the academics, where do we go to start a broader inquiry into strict and liberal construction? One natural place, in an era of "textualism" and dictionaries,(44) would be a standard law dictionary.

    2. The Words According to Black's 6th Edition

      Although dictionaries are of limited value in analyzing problems involving complex concepts,(45) the Sixth Edition of the venerable Black's Law Dictionary(46) [hereinafter "Black's 6th"] is an interesting place to start. In its microcosmic way, Black's 6th reflects judicial usage of these terms over the past several generations and may have exerted considerable undocumented influence on judges and lawyers.(47) Black's 6th is especially interesting because it contains at least two entries defining "strict construction,"(48) while...

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