Omar Bennett
The interpretation of the US Constitution has been a highly contested topic since its inception, with various schools of thought emerging over time. Strict constructionism, or the belief in a literal interpretation of the Constitution, has been a significant approach advocated by some politicians and legal scholars. This doctrine asserts that the Constitution should be interpreted strictly and literally, without deviation from the exact wording of the text. While this approach aims to uphold the original intent of the Founding Fathers, it has also been criticised for potentially leading to absurd outcomes or overlooking the evolving nature of society. The Democratic-Republican Party and Democrats during the antebellum period embraced strict constructionism to limit federal government powers. However, not all Founding Fathers supported this interpretation, and figures like Washington, Hamilton, and Adams favoured broader interpretations. The debate between strict constructionism and more flexible approaches continues to shape American politics and jurisprudence, with modern-day politicians and justices aligning with different schools of thought.
| Characteristics | Values |
|---|---|
| Political Affiliation | Conservative |
| Example Figures | Richard Nixon, Ronald Reagan, Antonin Scalia, Hugo LaFayette Black, Warren Burger, William Rehnquist |
| School of Thought | Originalism, Textualism |
| Interpretation of the Constitution | Strict, literal interpretation |
| Federal Government | States' rights advocates, strong federal government |
| Judicial Review | No express authorization, but established by precedent |
| Judicial Philosophy | Justices should interpret the law, not make it |
| Judicial Interpretation | Interpret laws reasonably, not strictly or leniently |
| Absurdity Doctrine | Interpret statutes to avoid absurd legal conclusions |
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What You'll Learn
Textualism and Constitutional Interpretation
Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time of their ratification, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning to the text and do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. Textualism is a subset of originalism and was developed to avoid some of the messier implications of originalism as it was first described. Originalism is a modest theory of constitutional interpretation rooted in history that was increasingly forgotten during the 20th century. It is modest because it doesn’t claim to rewrite the Constitution with grand pronouncements or faddish social theories. It simply calls for an understanding of the Constitution based on what the Constitution says.
Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as the intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. The textualist will "look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words". Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue), also called "scrivener's error".
Proponents of textualism argue that it promotes democratic values because it adheres to the words of the Constitution as adopted by the people, rather than what individual Justices think or believe. Opponents of a strict reliance solely on the text in interpreting the Constitution suggest that judges and other interpreters may ascribe different meanings to the Constitution’s text depending on their background.
Harvard Law School Professor Adrian Vermeule has recently challenged textualists with a new theory that he calls “Common Good Originalism”. He argues that conservative judges should infuse their constitutional interpretations with “substantive moral principles that conduce to the common good”. Textualists have not been amused, calling it nothing more than an embrace of the excesses of living constitutionalism dressed up in conservative clothing.
When determining that a punishment that did not involve physical mistreatment violated the Constitution, the Court first looked briefly to the text of the Amendment, noting that the exact scope of the phrase "cruel and unusual punishment" in the Eighth Amendment had not been detailed by the Court. The plurality then turned to other modes of interpretation, such as moral reasoning and historical practice, in deciding the case. This use of textualism in combination with other interpretive methods is distinguishable from a stricter textualist approach espoused most famously by Justice Hugo Black. Justice Black once wrote that the First Amendment’s statement that "Congress shall make no law...abridging the freedom of speech, or of the press" amounted to an absolute command that no law shall be passed by Congress abridging freedom of speech or the press. This form of textualism is sometimes referred to as pure textualism or literalism. Justice Antonin Scalia, who was both a textualist and an originalist, criticized this sort of strict constructionist approach to textualism. He wrote that a text should not be construed strictly or leniently, but reasonably, to contain all that it fairly means.
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Democratic-Republican Party's stance
The Democratic-Republican Party, also known as the Jeffersonian Republican Party, was founded by Thomas Jefferson and James Madison in the early 1790s. The party was formed in direct opposition to the Federalist Party and advocated for a decentralized government that gave more power to the states.
Members of the Democratic-Republican Party favored a strict interpretation of the Constitution. They believed that a strong national government was a threat to individual freedoms and state sovereignty. They were characterized by their advocacy for small government, emphasizing the interests of farmers, craftsmen, and laborers over wealthy commercial entities. They were also hostile to Great Britain and sympathetic to the French Revolution and Napoleonic Wars, as they revered personal civil liberties, which were better embodied by the French's anti-monarchist views.
The Democratic-Republican Party was immensely popular in the agrarian South, while those in the Northeast favored Federalist policies. The party grew its base using savvy marketing techniques, such as pamphlets, newspaper articles, and organized political clubs. They also introduced new techniques to rally voters and sway public opinion, focusing on local and county-level grassroots movements.
The influence of the Democratic-Republican Party can still be felt today. The party's ideological debates continue to resonate in contemporary American politics, reflecting the ongoing struggle between differing visions of governance and policy. The legacy of the party is evident in the formation of modern political factions, contributing to the evolution of the two dominant parties in the U.S.: the Republican and Democratic parties.
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Judicial review
In the US, the term "strict construction" has been used by members of the Democratic-Republican Party and Democrats during the antebellum period, referring specifically to Article I and the powers of the federal government. They argued for a strict interpretation of the Constitution to ensure that the bulk of governmental power remained with the states and not the federal government. This approach, known as strict constructionism, has been embraced by conservative politicians such as Richard Nixon, who pledged to appoint justices who would interpret the law and reinstate "law and order" to the judiciary.
However, strict constructionism has been criticised by some, including Supreme Court Justice Antonin Scalia, who argued that a text should not be construed strictly or leniently but reasonably, to contain all that it fairly means. Scalia, a textualist and originalist, believed that the original intent of the Framers of the Constitution was not always aligned with a strict interpretation. For example, Washington, Hamilton, and Adams took broad interpretations of the powers afforded to the federal government.
In addition to textualism, other modes of interpretation, such as moral reasoning and historical practice, are used by the courts in deciding cases. This is because textualism can sometimes lead to absurd results or overlook the evolving nature of certain constitutional principles, such as the Eighth Amendment's prohibition of "cruel and unusual punishment," which must draw its meaning from evolving standards of decency.
The debate over strict constructionism and textualism is not just a legal one but also a political one, with proponents arguing that it promotes democratic values by adhering to the words of the Constitution as adopted by the people. Opponents, on the other hand, argue that judges and interpreters may ascribe different meanings to the text depending on their background and that broadly worded provisions can lead to varying interpretations.
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Originalism
Jurist Robert Bork proposed the first modern theory of originalism in his 1971 law review article, "Neutral Principles and Some First Amendment Problems," published in The Yale Law Journal. Bork argued that without a specified constitutional text, judges could impose their own values during interpretation. He suggested that judges should instead adhere to the specific values that the text or history shows the framers intended, which can be translated into principled rules.
Despite the criticism, originalism continues to be a significant legal theory in the United States, with proponents arguing that it promotes democratic values and ensures that the interpretation of the Constitution is based on the original understanding of the text. Notable figures associated with originalism include Antonin Scalia, Raoul Berger, and Justice Neil Gorsuch.
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Federalism
The Federalists, including Alexander Hamilton and James Madison, supported the ratification of the Constitution and advocated for a strong central government and a loose interpretation of the Constitution. They believed that the Constitution was necessary to safeguard the liberty and independence gained through the American Revolution. The Federalists argued that the problems facing the country in the 1780s, such as Shays' Rebellion and pro-debtor state policies, were due to a weak central government and that a stronger union was needed to address these issues. They also favoured weaker state governments, longer term limits for officeholders, and representative democracy.
The Federalist Papers, written by Hamilton, Madison, and John Jay, were a series of 85 essays published between 1787 and 1788 that articulated the Federalist position. These papers urged New Yorkers to ratify the Constitution, explaining its provisions in detail and advocating for a strong union. The Federalists were well-organised, well-funded, and had strong support in the press, ultimately prevailing in the state ratification debates.
On the other hand, the Anti-Federalists, led by Patrick Henry, opposed the ratification of the Constitution due to fears of concentrated national power. They sought to emphasise state rights and wanted a weaker central government with more power given to the states. The Anti-Federalists wrote their own essays and newspapers articles, but they were ultimately unsuccessful in their efforts to prevent the ratification of the Constitution.
While the Anti-Federalists were against the ratification of the Constitution, they did believe in a strict interpretation of it. A strict interpretation would limit the power of the central government, as it would be bound by the duties outlined in the Constitution. This aligned with their desire for stronger state rights and a weaker national government.
In summary, Federalists supported a loose interpretation of the Constitution to enable a strong central government, while Anti-Federalists favoured a strict interpretation to limit the power of the central government and emphasise state rights. The Federalists ultimately prevailed, and the US Constitution was ratified, shaping the political philosophy and government structure of the United States.
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Frequently asked questions
Strict constructionism is the belief that the Constitution should be interpreted literally and that the federal government should only have the powers "expressly" granted to it by the Constitution.
The term "strict construction" was used by members of the Democratic-Republican Party and Democrats during the antebellum period. Richard Nixon and Ronald Reagan also embraced this approach.
An example of strict constructionism in practice is the interpretation of the First Amendment, which states that "Congress shall make no law...abridging the freedom of speech, or of the press." Justice Hugo LaFayette Black interpreted this to mean that Congress could not pass any laws restricting freedom of speech or the press.
Critics of strict constructionism argue that it can lead to absurd results and that it does not account for changing circumstances or the intent of the Founding Fathers. For example, a strict interpretation of a law prohibiting drawing blood in public would apply to surgeons providing medical aid to someone in an emergency.
