Strict Construction

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STRICT CONSTRUCTION

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 strict construction of federal power as a proper method of interpretation. It found not "[o]ne sentence in the Constitution … that prescribes this rule."

Strict construction becomes a much more complex concept when offered, as it has been, as a method of interpreting the entire Constitution. Strict construction then means interpretations that restrict the situations in which constitutional grants of power, or limitations on them, are deemed applicable. A strict construction simply limits the cases in which the Constitution applies. In this sense, a strict construction need not correspond to a constitutional interpretation that limits federal power. This difference results from the variable structure of constitutional provisions.

Some constitutional provisions are phrased positively in the sense that they confer powers upon Congress, the President, or the courts. Other provisions, such as the first amendment, are phrased negatively. A strict construction—in the sense of limiting the Constitution's applicability—of the positive powers limits federal authority, as Marshall did in marbury v. madison (1803), when he construed Article III not to authorize the Supreme Court to issue original writs of mandamus. But strict (that is, narrow) construction of a negative provision such as the First Amendment expands governmental authority. Even if strict construction had become the accepted technique for interpreting grants of power to Congress, it is questionable whether, in a government of limited powers, strict construction would be an appropriate technique for interpreting express constitutional limitations on Congress's power.

When used to interpret the entire Constitution, strict construction fails as a guiding principle in the large class of cases in which one constitutional provision can be interpreted narrowly only by broadly interpreting another provision. dred scott v. sandford (1857) highlights this problem. Dred Scott, which restricted Congress's power to regulate slavery in the territories and assured Chief Justice roger b. taney's reputation as a strict constructionist, is the Court's most famous strict construction of federal power. Yet, while Taney construed strictly Congress's power, he simultaneously construed broadly constitutional limitations on Congress's authority and the constitutional rights of slaveholders.

A similar problem undermines efforts to embrace strict construction as a politically conservative technique for judicial decision making. The conservative Supreme Court of the late nineteenth and early twentieth centuries did limit Congress's powers by, among other things, invalidating federal statutes as exceeding Congress's power under the commerce clause and by finding, in united states v. butler (1936), short-lived limitations on Congress's taxing and spending power. But in relying on the due process clauses to invalidate many federal and state enactments, the same Court offered broad interpretations of those limitations on government power.

The ambiguity attending strict construction has not deterred many from trying to exploit the concept for political advantage. Even in the early disputes between Federalists and Jeffersonians, when strict construction may have had its clearest meaning, there is a hint of hypocrisy in the reliance placed on strict construction. It is unlikely that insufficient strictness is what really troubled early critics of Marshall's and other Federalists' loose constructions. When it suited their goals, Marshall's critics supported loose construction. For example, to justify an administrative and legislative program imposing an embargo on France and England, President Jefferson interpreted broadly presidential and congressional authority to terminate and influence commerce. And Marshall did not always generously interpret the federal government's powers. At aaron burr's treason trial, Marshall strictly, that is to say, narrowly, construed Article III, section 3, the constitutional provision on treason.

Although many have tried to rely on strict constructionism to political advantage, this trend reached its modern peak under President richard m. nixon. He referred to strict construction as a characteristic he sought in a Supreme Court appointee. Nixon probably did not primarily mean one who narrowly construed the federal government's powers. He was most dissatisfied with the Supreme Court's criminal procedure decisions. In his 1968 campaign, Nixon announced his preference for Supreme Court appointees who would aid the society's peace forces in combating criminals. In this context strict construction was a double negative: limiting the situations in which the Constitution restricted states' criminal procedures. Only coincidentally would such constructions reduce the federal government's role.

Like previous users of the term, Nixon employed strict construction for political advantage, not to facilitate discussion of theories of constitutional interpretation. He never articulated his understanding of the phrase, and Justice harry blackmun, one of his Supreme Court appointees, disclaimed an understanding of it. Nixon once described Justice felix frankfurter as exemplifying what he sought in a Justice, yet Frankfurter delivered nonstrict criminal procedure opinions. In rochin v. california (1952) he wrote that forcing an emetic into a suspect's stomach to gather recently swallowed evidence shocked the conscience and, therefore, violated the due process clause of the fourteenth amendment. And Frankfurter dissented from the Court's decision upholding the admissibility of conversations overheard by means of electronic eavesdropping. In addition, in assessing a president's constitutional powers, Nixon was anything but a strict constructionist. The impoundment of funds appropriated by Congress, the invasion of Cambodia, the assertion of executive privilege, and many of Nixon's domestic security measures all suggest an expansive, nonstrict view of a president's constitutional authority.

Finally, "strict construction" may have other sensible meanings that do not refer to narrow interpretations. Justice hugo black may have thought himself to be construing the Constitution strictly when he applied it literally, as in First Amendment cases. Another plausible meaning is strict adherence to the letter and spirit of the Constitution. Under this view, everyone can claim to be a strict constructionist, adhering to what he or she ascertains to be the principles embodied in the Constitution. Strict construction also may characterize a passive judiciary. For example, many believe legislative apportionment to be a political question, a matter of concern only for the legislative and executive branches. A judge who invades the area is deemed active and, therefore, not a strict constructionist. Judge learned hand may have used strict construction in this sense when he stated that the Supreme Court's failure to define political questions is "a stench in the nostrils of strict constructionists."

Theodore Eisenberg
(1986)