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Strict Construction vs Loose Construction

The most compelling argument in opposition to a bill of rights was that if the federal government were prohibited from violating specific listed rights, what would stop it from violating rights other than the listed ones, that inevitably must be overlooked?

In defense of ratification of the Constitution, John Jay, Alexander Hamilton, and James Madison authored the series of 85 letters under the name "Publius,” which were later compiled in one volume called the Federalist.

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.”

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.”

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.


Jefferson’s complete argument, while too lengthy to quote here, was extremely compelling.

Which position is more tenable? Obviously, during the last century, in particular, our federal government has taken innumerable steps “beyond the boundaries … specially drawn around the powers of Congress.”

Are these steps constitutional, because (in Hamilton’s words) “government is in its nature sovereign” and possesses “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, following Jefferson’s view, is every action taken by government not specifically authorized by the Constitution, ipso facto, unconstitutional?

One phrase employed by Hamilton in his argument bears challenging: “That every power vested in a government is in its nature sovereign….”

While a government can be a sovereign state vis-à-vis other nations, can a government be sovereign in relation to its own citizens? In researching this concept, we came across an apt description of sovereignty in a republic: “Republican form of government acknowledges that the sovereign power is founded in the people, individually, not in the collective or whole body of free citizens, as in a democratic form. Thus no majority can deprive a minority of their sovereign rights and powers.”

In “The Crisis of the Republic,” an essay in The New American magazine for September 15, 1986, author and historian Dr. Clarence B. Carson observed: “So far as sovereignty resides anywhere, it is in the body of the electorate, not in government at all. The people, as sovereign, have confided powers of government through their constitutions to both state and general governments, in which each has a distinct jurisdiction.”

Hamilton’s concept of governmental power being sovereign, therefore, seems to have been a residual holdover from the colonial era, when the divine right of kings, was still acknowledged. As such, they seem to have been at odds with the premises upon which the American republic was founded.

As the primary author of the Declaration of Independence, Jefferson seemed to be in closer touch than his rival with undeniably American principles such as “That to secure these [unalienable] Rights [endowed by their Creator] Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”

It follows from that concept that if government derives its powers from the consent of the governed, then it is the governed who are sovereign, not the government. Moving from the Declaration of Independence to the Constitution, which codified the earlier document’s principles in a blueprint for our nation, we find these words: “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.”

The question remains, would the authors of the Constitution, who very recently had experienced the oppressive nature of a government that had become destructive of the ends of freedom (to paraphrase the Declaration) have given their new government virtual carte blanche to assume any power not specifically prohibited by the Constitution?

Or, would they have taken a more cautious approach, prohibiting the federal government from assuming any power not specifically delegated to it by the Constitution?

Such is the age-old argument between the strict constructionists and the loose constructionists.

It is our belief that Jefferson hit the nail squarely on the head in his argument against the establishment of the National Bank of the United States when he cited the 10th Amendment. The wording " The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" is unambiguous.

With the advantage of over two centuries’ worth of hindsight, the consequences of disregarding Jefferson’s warning against violating the language of the 10th Amendment should be more apparent than in his own day. Just consider the usurpation of power in Washington since 9-11, in the name of “national security.”

 

Our third president’s words bear repeating:
 

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.
 

 

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