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Strict Versus Loose Construction - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Strict Versus Loose Construction

In addition to arguing that the several States have a role to play in constitutional interpretation, many advocates of limited constitutional government have also insisted that there should be a rule of interpretation which favors the States in cases involving the scope of Federal power. Since the earliest days of the American republic, there has been considerable concern that the Federal government, through a broad interpretation of its powers, might swallow up the reserved powers of the States.

Many of the powers delegated by the States to Congress, for example, are expressed in general terms and are susceptible to conflicting interpretations, most especially when the implied or “necessary and proper” powers are added to expand the enumerated power. As we saw earlier, the power of Congress “to regulate commerce among the several States” is open to a wide variety of interpretations. Does the word “regulate” include the right to prohibit? Does the word “commerce” mean just the goods themselves, or does it include as well the environment in which commerce moves, such as waterways or the airspace above a State? Does “commerce” include manufacturing, mining, and other activities prior to the time the goods are shipped? Does it include agriculture before harvest? Does it include individuals traveling from one State to another to visit relatives? Is the commerce power an exclusive power, or may the States in the absence of Federal laws regulate commerce passing through their territory?

These are the kinds of difficult issues that have confronted the Supreme Court from the beginning, often requiring the judges to define the limits of power. If the powers are defined broadly, the Federal government tends to benefit. A narrow definition restricting the scope of a Federal power usually works to the advantage of the States. Very early in our history, States’ Rightists in the Republican-Democratic Party, led by Thomas Jefferson, accused Chief Justice Marshall and many of the Associate Justices serving on the Court with him of a federal bias. They favored “strict” construction of the Constitution, whereas Marshall and other Federalists advocated a “loose” construction. The proper rule of interpretation, wrote St. George Tucker of Virginia in his American edition of Blackstone, was to interpret the Constitution strictly: “it is to be construed strictly, in all cases, where the antecedent rights of a State may be drawn into question.” That is to say, although the Constitution should not necessarily be interpreted narrowly in all respects, it should be strictly construed in those instances where the rights of the States were at stake and a power previously exercised by the State governments was in danger of being usurped by the Federal government. His reasoning was that the Union was a compact or written agreement among the States. Like a contract between two or more parties, the Constitution established rights and obligations. The “loose” construction of its terms would defeat the intent of the parties and was inconsistent with State sovereignty.

Similarly, Thomas Jefferson laid down two rules for the interpretation of the Constitution. His first rule of interpretation was to reserve to the States authority over all matters that affected only their own citizens: “The capital and leading object of the Constitution was, to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States; to make us several to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the States in the former, if possible to be so construed.”

The second rule of interpretation, said Jefferson, was to construe the Constitution as the Founding Fathers would have construed it: “On every question of construction, we should carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

John Marshall and his brethren on the Supreme Court were in basic agreement with Jefferson that the original intent of the Framers ought to govern. What divided the “strict” constructionists from the “loose” constructionists, therefore, was not whether the original meaning of the Constitution should be followed, but what the Framers intended.

The “loose” constructionists, enjoying strong support on the Supreme Court through Marshall, Story, and other Justices, tended to prevail. In such major cases as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1823), the Court broadly interpreted the powers of Congress. By 1835, when John Marshall was succeeded by Roger B. Taney as Chief Justice, the Court had built a strong array of judicial precedents that strengthened its own position in relation to the other two branches of the Federal government, and also laid the foundation for future expansions of national power.

It would be erroneous to conclude, however, that the nationalism of the Marshall Court reached into every nook and cranny of the Constitution, eclipsing the reserved powers of the States wherever it went. By today’s practices, it was very limited. The principal gains of the national government were related to the commercial life of the young Republic, and the States continued to function as powerful, independent entities in public affairs. In the broad area of civil rights, for example, the Federal government had no major role to play—and would not for another century. In keeping with the original purpose and meaning of the Bill of Rights, a unanimous court, speaking through Chief Justice Marshall, held in Barron v. Baltimore (1833) that the Bill of Rights was designed to limit only the Federal government and did not apply to the States. Not until the adoption of the Thirteenth, Fourteenth, and Fifteenth amendments, otherwise known as the Civil War or Reconstruction Amendments, did the Federal government acquire much jurisdiction over civil rights disputes in the States. Even then, the main thrust of its involvement was the protection of the newly emancipated slaves in the post–Civil War era of Reconstruction and not such matters as freedom of speech and religion.

The States’ Rightists, resisting the Marshall court, viewed judicial nationalism with great apprehension, fearing that the practice of loose construction would set dangerous precedents and weaken the States. Although States’ Rights would later become a convenient peg upon which to defend the institution of slavery, the doctrine was rooted in the Federal Convention. And in the early days of the Republic, before slavery became a burning issue, States’ Rights was a constitutional theory that cut across sectional lines between the North and South. One of the leading States’ Rightists in the Federal Convention, we are reminded, was Elbridge Gerry of Massachusetts. The States’ Rightist from Virginia, George Mason, spoke against slavery and vigorously opposed it. States’ Rightists did not share the Federalists’ vision of a great empire reaching from the Atlantic to the Pacific. They had strong attachments and loyalties to their States, and generally distrusted centralized political power. The constitutional theories they advanced in support of strict interpretation were almost fully developed by the time Thomas Jefferson was elected President.

These differing constitutional theories of interpretation between the Nationalists and the States’ Rightists dominated American politics during the first century of the Republic. The Civil War (or War Between the States, as the southerners preferred to call it) was the end result of this constitutional quarrel. To a very large extent, the great military conflict that erupted between the North and the South in 1861 was fought over this basic question: what is the correct interpretation of the Constitution respecting the powers of the States and the national government? The Civil War answered this question in part by laying to rest the doctrines of Nullification and Secession. But it did not put an end to federalism or change the rules of constitutional interpretation. The basic principle that the Constitution should be strictly construed to reflect the original meaning of the words and text has found considerable support on the Supreme Court since the Civil War, just as the principle that it should be loosely construed has also enjoyed considerable—if not majority—support.

In the final analysis, it must be remembered that the question of interpretation is inevitably affected by politics. Ideally, the Constitution should be given a consistent interpretation. But as the Founding Fathers understood well, the temptations of office are often too great to expect a uniform adherence to principle in all situations. Those who possess political power may be inclined to favor a broad interpretation of the Constitution in order to carry out their programs, whereas those who are out of power may be inclined to argue for a narrow interpretation in order to block those programs.

The task of the principled statesman and judge is to resist those temptations and consistently defend the proper interpretation of the Constitution—even when it results in the advancement of a particular social, economic, or political policy that he personally opposes. But perhaps too few public leaders are willing to put principle ahead of personal gain or partisanship. This is not to suggest that those who argue for a particular interpretation in any given situation may be insincere, but merely to put the student on notice that, in order to evaluate a constitutional interpretation fairly and honestly, he should judge it on its own merits and not by the policy it promotes. Principled constitutionalism is resisting the temptation to twist the meaning of the Constitution to suit a particular political goal, no matter how worthy, and letting the chips fall as they may.