"Strict Construction" and judicial activism: what do these terms really mean?
In recent years, many pundits have called for a return to "strict construction" of legal documents, legislation and even the Constitution. In some cases, the advocates have gone so far as to argue for "original intent," that is, interpreting the Constitution, for example, as intended by its draftors, rather than by modern analysis. This initially inviting and simple suggestion loses some of its attraction when we are reminded that many of those draftors were actually slave-owners and that the Constitution itself assigned a value of only six-tenths of a person to black slaves.
None of the draftors would have granted the vote, for example, to blacks or women; and a majority would have denied the vote even to white males if they lacked their state's prescribed property requirements. The suggestion that "strict construction" is a simple and more accurate judicial goal, and the criticism of any other approach as "judicial activism," intentionally obfuscates the task of the judiciary and denigrates our courts. As examples, we point to two recent events reported in widely divergent courts.
In Unifund CCR Partners v. Robin H. Kyle, the Defendant was sued to recover a $7,000.00 credit card debt. A resident of the City of Grosse Pointe, Kyle argued that the case against him could not be brought in Wayne County Circuit Court because pursuant to statute (MCL 600.8301) the jurisdictional threshold for all Circuit Courts in Michigan is $25,000.00. The City of Grosse Pointe has no District Court and the jurisdictional maximum of its Municipal Court is $3,000.00. Kyle did not deny that "strict construction," which has been used repeatedly by Michigan's Engler Majority to deny injury victims' rights, would deprive his credit card company of any forum in which to collect its debt.
The Court of Appeals, unburdened by "strict construction" when there is a straight-forward liquidated debt, simply ignored the statutory language governing the Circuit Court's jurisdictional limit, and allowed the credit card people to sue Kyle where they could collect their full debt. Seems as though few of us would disagree that there should be a court in Grosse Pointe somewhere for the collection of debts having a value between $3,000 and $25,000.00.
Meanshile, in England, Procter & Gamble ran into a different kind of "strict construction" controversy. The makers of Pringles [marketed in the U.S. as a "potato chip"] argued that they should not be taxed as a "potato crisp or similar product" [the English call potato chips "crisps"] because Pringles are only forty percent potato. The Supreme Court of Judicature, England's highest court, slapped down P & G's argument as calling for "overelaborate, almost mind-numbing legal analysis." In essence, the Court concluded that if it looks like a chip, smells like a chip, tastes like a chip and is made like a chip---its a chip or a "similar product."
P & G argued that to meet the statutory language applying the tax to a "similar product", chips would have to be made exclusively, or nearly exclusively, of potatoes, and that Pringles don't have enough potato to meet the quality of "potatoness." Nonsense, replied the Court. Judges have maintained for a century that sometimes you just have to say "if it looks like a duck and quacks like a duck---its a duck," and there is no need to parse the creature's DNA. It has been observed that "common sense ain't so common," and quite often it has been sacrificed at the altar of "strict construction." England's highest court wasn't about to be coaxed into a semantic definition that sacrificed common sense.
Sadly, it seems as though in our state, common sense is only disregarded when it would apply to protect the rights of consumers. When a large corporation or insurer is involved, applying sommon sense is termed "judicial activism." We derive one other lesson from the Pringles case: don't pursue any legal argument that requires the use of the term "potatoness." Its our opinion that if you can't give your argument to your 10-year old without inducing giggling, you'd better refine it.