Strict Construction

During the Reagan administration Attorney general Edwin Meese and Judge Robert Bork and other conservative spokesmen demanded that the Constitution be interpreted as the founders intended it, that there be a “strict construction” of the Constitution in attempting to decide contemporary court cases. This view has been around for some time, but it rests on the questionable assumption that we can know what the hell the Founders meant when they wrote that document in the eighteenth century. We can’t. We don’t even know what we ourselves mean when we say or write something today — even our own words in many cases! Can anyone reading this please tell me, for example, what the dickens our President means when he tweets his endless drivel? Does he even know?.

James Madison, who authored the Constitution in large part, and who kept copious notes on the proceedings of the Convention when the document was being discussed, insisted that his notes be kept private until after his death. In his words, it was better that people make of it what they can on their own, that his notes remain unpublished

“till the Constitution should be well settled by practice, and till a knowledge of the controversial parts of the proceedings of its framers could be turned to no proper account.”

In a word, it is better, in the view of the founders themselves, that no attempt be made to try to determine what a group of men — most or whom disagreed with one another on nearly every topic — might possibly have meant, especially hundreds of years ago. As John Murrin says in his excellent book, Rethinking America, ”

“Even if we decide to accept the accuracy of these accounts, they only tell us what one man [Madison] thought, not why the majority voted as it did or what the majority assumed it was doing.”

Strict Construction is a fiction. It demands that we strive for an impossible goal: to know what a group of men thought years ago in the heat of debate and during a time when thirteen colonies had very different agendas and there was yet no sense of a “united” states. Murrin concludes that

“The real question is not what the drafters thought they were writing, but what the people believed they were implementing [when they ratified the document].”

And that, as we know, is an impossible quest. But, then, so is “strict construction.”


10 thoughts on “Strict Construction

  1. I often find it ironic that many of the strict “originalists,” among the judiciary and lawmakers, are conservatives who also continue to rule or vote on the side of today’s gunmakers and gun-ownership rights. It is impossible, indeed, to know exactly what the Framers meant or how to apply what they wrote to today’s circumstances. But I’d sure think a self-proclaimed true originalist would want to read and apply the 2nd Amendment in its entirety! But they always conveniently skip over the well-regulated militia part.

  2. Hugh, you are so right. I keep hearing that my former party represent strict constitutional interpretation. Personally, I don’t see why. As I mention in my post on the overplayed Nazi label, more than a few need to study that 1st amendment, especially the one who violates it the most. That same person needs to also study the separation of powers, as should some spineless Congressional folks. At least that is what I see. Keith

  3. I suggest you read Mark Levin. I know that name is probably not the most revered on this blog, but if you want to understand the position you are criticizing, he can explain it the best. You would probably be surprised how closely he agrees with your position.

    That being said, you don’t need to be a constitutional scholar to realize that much of the welfare state legislation that has been upheld by the courts violates the 10th Amendment. Remember the argument that the Obamacare fine was actually a tax? Please.

    Maybe pure originalism isn’t the ideal way to interpret the constitution, but let us please stop reading stuff into it that isn’t there.

    • I’m not sure what you mean by “reading into it,” but interpretation is required and it cannot, ultimately, rest on guesses about what the founders might have meant! In addition, of course, things have changed a bit in the intervening two hundred plus years, even supposing we could know what they meant. Thanks for the comment.

  4. Ahhhh … one of my favourite topics … Constitutional Law! Your point is valid, that the founders never intended the document to reflect a rigid set of thought processes they performed while drafting the document, but rather intended it to be a ‘living’ document that grew and morphed, for lack of a better word, as the nation morphed. The argument I always use is that the framers of the Constitution were smart men and they realized that changes would happen that they could not possibly imagine back in 1787. They intended the document to provide a basic set of guidelines, but not a rigid construction. Take, for example, the 2nd amendment. In their wildest dreams, the framers of the Constitution could not have imagined an “arm” that could fire up to 800 rounds, theoretically killing 800 people, within a minute … a single minute. If they had envisioned this, either there would be no 2nd amendment, else it would have been worded much differently. They expected us to use the document they crafted as a foundation to build upon. They expected us to use … common sense. Methinks we have let them down. Sometimes I have a bit of fun imagining them returning to earth in this, the 21st century, and as they pop out from their cocoons, a Boeing 747 flies overhead on its way to Dulles. 😉 Yes, it is late and I am winding down a stressful day by enjoying posts by three of my favourite bloggers — you, Keith and Gronda — and leaving comments on each. ‘Tis my way of relaxing. Forgive, please. 😉

    • If the founders did pop up in the 21st Century they would turn around and go back to wherever they came from! We have turned their blessed document on its head. One thing they seemed to have been of one mind on was the notion that the best and wisest would rise to the top and run the show. We can see how that turned out!
      (NEVER apologize for making a comment no matter how long!!)👌

  5. Your response prompts a question for me. Certainly much has changed in the last couple of centuries which makes adjustments to the Constitution necessary. In fact, the founders gave us a clear process for doing so. Yet, the constitution hasn’t been changed in almost 50 years. Instead, the courts have taken it upon themselves to “interpret” the constitution in new ways. Am I wrong thinking that those in power are going around the people to implement change?

    • I think you are right about those in power ignoring the people to realize their own agendas. No question. Further, I think the courts are part of the legislative process, more than the founders realized, perhaps. But I am not sure why this alters my conclusion about the impossibility of “strict construction.”

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