Wednesday, February 20, 2019

The Myth of Strict Construction

by Agit8r (writer), Spokane, WA, November 22, 2012

This specious legal argument created by two left-wing lawyers, is perhaps our oldest, if not most enduring, political myth.

Strict construction surmised that the federal goverment could do nothing that wasn't spelled out in so many words within the constitutional document. Two lawyer from Virginia came up with the argument in response to what they saw as the building of an aristocratic hierarchy, like that of England. Thomas Jefferson had already had a distinguished career as a foriegn minister, for having authored the Declaration of Independence, for championing universal public education in Virginia, and for secularizing the College of William and Mary as a member of it Board of Visitors (having been unsuccessful in his attempts at legislating such). James Madison's most important work would be later, in forming the Republican opposition around a loosely constructed platform of universal suffrage, social egalitarianism, and widespread economic opportunity, but he already had another significant credential that Jefferson lacked; a key role in framing the Constitution itself. These attributes lent credibility to what was clearly--even then--a specious argument at best.

While attracting support from former anticonstitutionalists, most supporters of the Constitution at the time (including Federalist Paper authors Alexander Hamilton and John Jay) regarded this creative legal argument as invalid and even absurd. As Hamilton reported to George Washington in an August 18, 1792 letter:

' A member of a majority of the legislature would say to these defamers – "Your politics originate in immorality, in a disregard of the maxims of good faith and the rights of property, and if they could prevail must end in national disgrace and confusion. Your rules of construction for the authorities vested in the Government of the Union would arrest all its essential movements and bring it back in practice to the same state of imbecility which rendered the old confederation contemptible. Your principles of liberty are principles of licentiousness incompatible with all government. You sacrifice everything that is venerable and substantial in society to the vain reveries of a false and new fangled philosophy" '

Washington was sympathetic to Hamilton's interpretation if not his characterization of his opponents. He would however reach a similar level of vitriol against strict construction during the Whisky Rebellion as shown in a September 25, 1794 letter to Burges Ball:

' [C]an any thing be more absurd, more arrogant, or more pernicious to the peace of Society, than for self created bodies, forming themselves into permanent Censors, and under the shade of Night in a conclave, resolving that acts of Congress which have undergone the most deliberate, and solemn discussion by the Representatives of the people, chosen for the express purpose, and bringing with them from the different parts of the Union the sense of their Constituents, endeavouring as far as the nature of the thing will admit, to form that will into Laws for the government of the whole; I say, under these circumstances, for a self created, permanent body, (for no one denies the right of the people to meet occasionally, to petition for, or to remonstrate against, any Act of the Legislature &ca) to declare that this act is unconstitutional, and that act is pregnant of mischief; and that all who vote contrary to their dogmas are actuated by selfish motives, or under foreign influence; nay in plain terms are traiters to their Country, is such a stretch of arrogant presumption as is not to be reconciled with laudable motives: especially when we see the same set of men endeavouring to destroy all confidence in the Administration, by arraigning all its acts, without knowing on what ground, or with what information it proceeds and this without regard to decency or truth. '

Even the inventors of strict construction did not adhere to the concept once they held the office of President and Secretary of State respectively, for no wording in the constitution specifically authorized the purchase of the Louisiana Territory. Jefferson defended his actions in a September 20, 1810 letter to John B. Colvin:

' To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means '

By the beginning of the Era of Good Feelings, strict constructionism was dead, until ressurected a century later for the cynical purpose of combatting the Progressive movement, the New Deal, and more recently for rolling back Nixonian Democracy.

About the Writer

Agit8r is a writer for BrooWaha. For more information, visit the writer's website.
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