Strict Construction

Author:Theodore Eisenberg

Page 2560

This phrase purports to describe a method of CONSTITUTIONAL INTERPRETATION. Those using it, however, often are not referring to the same interpretive method. Classically, a strict construction is one that narrowly construes Congress's power under Article I, section 8. But some use strict construction to mean interpretations that limit the situations to which a constitutional provision applies, without regard to the interpretations' effect on the scope of federal power. Despite the existence of these and other definitions, one theme unites many uses of the phrase. Most users employ strict construction to support political positions by portraying them as the result of what at least sounds like a value-neutral interpretive technique. The phrase's political use now outweighs any technical legal significance it may have.

The term's greatest historical importance stems from its use to describe restrictive interpretations of the federal government's constitutional powers. Modern constitutional interpretations render strict construction of federal power a remnant of the past. In the nation's early years, however, the question of strict versus BROAD CONSTRUCTION of federal power was as critical as any question facing the country. The dispute over whether to establish a BANK OF THE UNITED STATES provided the setting for the first debate over the construction to be afforded Congress's powers. THOMAS JEFFERSON and JAMES MADISON, who both opposed the Bank, "strictly construed" the federal government's powers and concluded that Congress lacked power to create the Bank. ALEXANDER HAMILTON, who favored the Bank, advocated a more flexible view of federal power. In disputes over federal power, the phrase would continue to characterize these early Jeffersonian positions opposed by Federalists.

Chief Justice JOHN MARSHALL'S reputation as a nonstrict-constructionist owes much to his opinion for the Court sustaining the validity of the act creating the second Bank of the United States. In MCCULLOCH V. MARYLAND (1819) Marshall endorsed Hamilton's view of Congress's powers in an opinion that included the oft-quoted passage, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." In GIBBONS V. OGDEN (1824), again speaking through Marshall, the Court expressly rejected

Page 2561

strict construction of federal power as a proper method of interpretation. It found not "[o]ne sentence in...

To continue reading