Stewards of the Visual Exposition
Now is the Constitution to be Constructed or Interpreted?
Two Views: Strict Construction vs. Loose Construction
Scholars view the Constitution from 2 viewpoints: Some see the Constitution as an unchanging document. (the "Originalist" viewpoint); and others see the Constitution as a "Living Document (which changes with the times).
Though the differences of opinion between the Federalists and anti-Federalists preceded the ratification of the Constitution, and may be viewed as irrelevant to a discussion about whether the Constitution should be construed strictly or loosely, the philosophical differences expressed during the ratification period set the stage for later differences about how to interpret the document.
The Federalist philosophy was later incorporated into the position of the Federalist Party, whose views are notably represented by Alexander Hamilton, an early "loose constructionist." [Note, as discussed below, Hamilton attended the Constitutional Convention as a "monarchist," which meant he wanted the new American government to be modeled after the British system (extreme centralized power) and wanted the states to be stripped of their sovereign power. His approaches and views were completely rejected].
The Anti-Federalists, in contrast, whose philosophy is roughly equivalent to modern-day Libertarians (sometimes called Constitutionalists), helped form the Jeffersonian Republican Party (eventually the Democratic-Republican, and finally the Democratic Party). Jefferson and his philosophical brethren were very early examples of "strict constructionism."
[Let's not forget that at the Constitutional Convention of 1787, there were 3 parties, each with a strong opinion as to the purpose of a government representing all the states. The first group was the Monarchists who were intent on stripping the individual states of all their sovereign powers and substituting one unitary, all-powerful government, to be responsible for all land and all people. Its most vocal proponent was Alexander Hamilton. He made a famous speech at the Convention in which he avowed his admiration for the British constitution and expressed his desire that the delegates model the American government after the British system. He called for a president who would be appointed for life, senators with life terms, and power vested in the president to appoint all governors. Each of these mirrors the British model.
The second group was the Nationalists, who pushed for a strong centralized "national" government and was against sharing of power with the states. Its most vocal proponent was James Madison. It would have a national executive branch, a national legislative branch, and a national judiciary branch. There would be little or no deference or respect for the states. Specifically, Madison wanted a strong centralized (power centralized in the government) modeled after his state of Virginia and largely dominated by officials from Virginia. In fact, Madison arrived at the Convention several days early in order that he would have time to draft a series of proposals on which he believed the Constitution should be based. His intention was to introduce the other delegates to his proposals and then vote on them and ratify them. His series of proposals was known as the "Virginia Plan." Initially the delegates voted on the plan in approval but as the days and weeks went on, they overwhelmingly discarded it for the federalist system (below).
The third group was the Federalists, who luckily won the day at the Convention. They wanted the states to retain their sovereign power. Consequently, their system was one that divided the powers of government between the central government and state and local governments. This was obvious in the limited powers of the government, in the make-up of delegates in the legislative branch, including the election of Senators by the individual state legislatures rather than the people, the amendment process, and the jurisdiction assigned to the federal court system].
The classic dispute between the two sides came up in 1791, when Hamilton, our nation's first Secretary of the Treasury, proposed establishing the First Bank of the United States. Hamilton's plan included funding the bank through the sale of $10 million in stock, $2 million of which would be purchased by the U.S. government. Since the treasury did not have the $2 million, Hamilton proposed that the government make the stock purchase using money loaned to it by the bank.
President Washington solicited the opinions of his cabinet members about the bank, and two Virginians -- Attorney General Edmund Randolph and Secretary of State Thomas Jefferson -- believed its establishment would be unconstitutional. Washington was hesitant to approve the legislation establishing the bank, but eventually relented.
Hamilton's reasoning as to why the federal government had the constitutional authority to establish the bank was classic loose constructionist: "That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society."
And Jefferson's opinion was just as classic in articulating the position of the strict constructionist: "I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.' [10th amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.
[ http://www.jbs.org/us-constitution-blog/2151-strict-construction-vs-loose-construction ]
I am an "originalist,"- that is, I subscribe to the "Original Intent" theory which means that I believe the Constitution means the same thing today as the day it was written. In fact, I believe that the whole purpose of a written constitution is to prevent it from changing as attitudes and majorities change. If the people or politicians wish to change or amend the Constitution in any way, they can do so.... by the Constitutionally proscribed manner - thru the "amendment" process. [I could see the "Living Document" viewpoint, maybe, if we didn't have an "amendment" process].
"Originalism" helps ensure predictability and protects against arbitrary changes in the interpretation of a Constitution. As Thomas Jefferson explained: "If the Constitution as interpreted can truly be changed at the decree of a judge, then the Constitution is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." Hence, the purpose of the Constitution would be defeated, and there would be no reason to have one. Justices Antonin Scalia and Clarence Thomas follow this viewpoint. It's the viewpoint of conservatives. On the other hand, people like Barack Obama, Al Gore, and Justices Ruth Bader Ginsburg, and Sonia Sotomayor see no problem in changing the Constitution.
As our nation's first Chief Justice, Chief Justice John Marshall, stated in Marbury v. Madison (1801): "The Constitution organizes the government, and assigns to different departments their respective powers. The powers of the legislature are defined and limited. The Constitution was written in order that those limits may not be mistaken or forgotten. If the Constitution were not written with the intent of limiting those powers, then at any time, those limitations could be removed by those intended to be restrained."
From Craig Bosley's article "Constitutional Coup": "Recently, retired Justice David Souter revealed the Justices' treasonous secret. He said that when considering a ruling, the Constitution "has only a tenuous connection to reality" and using it leads to bad decisions. In other words, he believes the Supreme Court should supplant the Constitution.
If so, isn't that an admission of judicial misconduct? As the USA Today pointed out, at least Souter told the truth while other justices still try to "cloak their innovations with references to the Constitution's text."
Could Souter and other justices who believe in a "living Constitution" point to the wording in the United States Constitution that gives the Supreme Court this power? There are none. The only constitutional option available to the Supreme Court if the Constitution does not adequately address the case before them, is to refer the issue to the Congress, which does have the constitutional authority to propose an amendment to "We the people." Since this has never happened, doesn't this mean either the Constitution is perfect or the Supreme Court has replaced the Constitution to reflect a "living Constitution?" [http://www.craigbosley.com/ ]
Go Back
Scholars view the Constitution from 2 viewpoints: Some see the Constitution as an unchanging document. (the "Originalist" viewpoint); and others see the Constitution as a "Living Document (which changes with the times).
Though the differences of opinion between the Federalists and anti-Federalists preceded the ratification of the Constitution, and may be viewed as irrelevant to a discussion about whether the Constitution should be construed strictly or loosely, the philosophical differences expressed during the ratification period set the stage for later differences about how to interpret the document.
The Federalist philosophy was later incorporated into the position of the Federalist Party, whose views are notably represented by Alexander Hamilton, an early "loose constructionist." [Note, as discussed below, Hamilton attended the Constitutional Convention as a "monarchist," which meant he wanted the new American government to be modeled after the British system (extreme centralized power) and wanted the states to be stripped of their sovereign power. His approaches and views were completely rejected].
The Anti-Federalists, in contrast, whose philosophy is roughly equivalent to modern-day Libertarians (sometimes called Constitutionalists), helped form the Jeffersonian Republican Party (eventually the Democratic-Republican, and finally the Democratic Party). Jefferson and his philosophical brethren were very early examples of "strict constructionism."
[Let's not forget that at the Constitutional Convention of 1787, there were 3 parties, each with a strong opinion as to the purpose of a government representing all the states. The first group was the Monarchists who were intent on stripping the individual states of all their sovereign powers and substituting one unitary, all-powerful government, to be responsible for all land and all people. Its most vocal proponent was Alexander Hamilton. He made a famous speech at the Convention in which he avowed his admiration for the British constitution and expressed his desire that the delegates model the American government after the British system. He called for a president who would be appointed for life, senators with life terms, and power vested in the president to appoint all governors. Each of these mirrors the British model.
The second group was the Nationalists, who pushed for a strong centralized "national" government and was against sharing of power with the states. Its most vocal proponent was James Madison. It would have a national executive branch, a national legislative branch, and a national judiciary branch. There would be little or no deference or respect for the states. Specifically, Madison wanted a strong centralized (power centralized in the government) modeled after his state of Virginia and largely dominated by officials from Virginia. In fact, Madison arrived at the Convention several days early in order that he would have time to draft a series of proposals on which he believed the Constitution should be based. His intention was to introduce the other delegates to his proposals and then vote on them and ratify them. His series of proposals was known as the "Virginia Plan." Initially the delegates voted on the plan in approval but as the days and weeks went on, they overwhelmingly discarded it for the federalist system (below).
The third group was the Federalists, who luckily won the day at the Convention. They wanted the states to retain their sovereign power. Consequently, their system was one that divided the powers of government between the central government and state and local governments. This was obvious in the limited powers of the government, in the make-up of delegates in the legislative branch, including the election of Senators by the individual state legislatures rather than the people, the amendment process, and the jurisdiction assigned to the federal court system].
The classic dispute between the two sides came up in 1791, when Hamilton, our nation's first Secretary of the Treasury, proposed establishing the First Bank of the United States. Hamilton's plan included funding the bank through the sale of $10 million in stock, $2 million of which would be purchased by the U.S. government. Since the treasury did not have the $2 million, Hamilton proposed that the government make the stock purchase using money loaned to it by the bank.
President Washington solicited the opinions of his cabinet members about the bank, and two Virginians -- Attorney General Edmund Randolph and Secretary of State Thomas Jefferson -- believed its establishment would be unconstitutional. Washington was hesitant to approve the legislation establishing the bank, but eventually relented.
Hamilton's reasoning as to why the federal government had the constitutional authority to establish the bank was classic loose constructionist: "That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society."
And Jefferson's opinion was just as classic in articulating the position of the strict constructionist: "I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.' [10th amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.
[ http://www.jbs.org/us-constitution-blog/2151-strict-construction-vs-loose-construction ]
I am an "originalist,"- that is, I subscribe to the "Original Intent" theory which means that I believe the Constitution means the same thing today as the day it was written. In fact, I believe that the whole purpose of a written constitution is to prevent it from changing as attitudes and majorities change. If the people or politicians wish to change or amend the Constitution in any way, they can do so.... by the Constitutionally proscribed manner - thru the "amendment" process. [I could see the "Living Document" viewpoint, maybe, if we didn't have an "amendment" process].
"Originalism" helps ensure predictability and protects against arbitrary changes in the interpretation of a Constitution. As Thomas Jefferson explained: "If the Constitution as interpreted can truly be changed at the decree of a judge, then the Constitution is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." Hence, the purpose of the Constitution would be defeated, and there would be no reason to have one. Justices Antonin Scalia and Clarence Thomas follow this viewpoint. It's the viewpoint of conservatives. On the other hand, people like Barack Obama, Al Gore, and Justices Ruth Bader Ginsburg, and Sonia Sotomayor see no problem in changing the Constitution.
As our nation's first Chief Justice, Chief Justice John Marshall, stated in Marbury v. Madison (1801): "The Constitution organizes the government, and assigns to different departments their respective powers. The powers of the legislature are defined and limited. The Constitution was written in order that those limits may not be mistaken or forgotten. If the Constitution were not written with the intent of limiting those powers, then at any time, those limitations could be removed by those intended to be restrained."
From Craig Bosley's article "Constitutional Coup": "Recently, retired Justice David Souter revealed the Justices' treasonous secret. He said that when considering a ruling, the Constitution "has only a tenuous connection to reality" and using it leads to bad decisions. In other words, he believes the Supreme Court should supplant the Constitution.
If so, isn't that an admission of judicial misconduct? As the USA Today pointed out, at least Souter told the truth while other justices still try to "cloak their innovations with references to the Constitution's text."
Could Souter and other justices who believe in a "living Constitution" point to the wording in the United States Constitution that gives the Supreme Court this power? There are none. The only constitutional option available to the Supreme Court if the Constitution does not adequately address the case before them, is to refer the issue to the Congress, which does have the constitutional authority to propose an amendment to "We the people." Since this has never happened, doesn't this mean either the Constitution is perfect or the Supreme Court has replaced the Constitution to reflect a "living Constitution?" [http://www.craigbosley.com/ ]
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