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 In his words, it was better that people make of it what they can on their own, that his notes remain unpublished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.”

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