Constitutional Interpretation

How Should the Constitution be Interpreted?

Essential Question

  • How have theories of how to interpret the Constitution evolved over U.S. history?

Initial Theories of Constitutional Interpretation

  • The Constitution was intentionally crafted in a broad manner, lacking many specifics, for several key reasons:

    • To allow for flexibility in addressing future events and circumstances.

    • Due to disagreements among delegates on several details.

    • Some details were deliberately left for Congress to determine later.

    • The time constraints of the Convention necessitated a less detailed approach.

  • As a result of its vagueness, theories regarding constitutional interpretation emerged almost immediately.

Initial Theories

  • The two prevailing initial theories of constitutional interpretation:

    • Strict Constructionism

    • Loose Constructionism

Strict Constructionism

  • Advocates of strict constructionism maintain that the Federal Government possesses only those powers explicitly stated in the Constitution, defined as:

    • Enumerated Powers or Expressed Powers.

  • This theory relies heavily on the wording of the 10th Amendment:

    • "The powers not delegated to the United States [Federal Government] by the Constitution, nor prohibited by it [The Constitution] to the states, are reserved to the states respectively, or to the people."

  • Implications of Strict Constructionism:

    • Limits the power of the Federal Government.

    • Enhances the powers of State Governments.

  • Historical Context:

    • Most Anti-Federalists were strong advocates of strict constructionism.

Loose Constructionism

  • Proponents argue that the Federal Government may possess powers not explicitly detailed in the Constitution, provided these powers are not expressly prohibited. These powers are referred to as:

    • Implied Powers.

  • Proponents cite the "Necessary and Proper Clause", which states:

    • "The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [previously listed] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

  • Implications of Loose Constructionism:

    • Expands the power of the Federal Government.

    • Limits the power of State Governments.

  • Historical Context:

    • Most Federalists were likely to support loose constructionism.

Strict vs. Loose Constructionism in Action

The Debate over National Bank

  • Strict Constructionist Position (represented by Jefferson):

    • Argued that establishing a national bank is not an expressed power under the Constitution.

  • Loose Constructionist Position (represented by Hamilton):

    • Contended that creating a national bank is necessary and proper to manage the expressed power of regulating currency.

  • Result:

    • The National Bank was established by Congress in 1791, setting a significant precedent for the implied power to create a national bank.

Evolution of Constitutional Interpretation

  • Over the history of the United States, it has become clear that the Federal Government possesses implied powers, evidenced by actions such as:

    • Acquiring new territory.

    • Establishing the Air Force.

  • The debate over constitutional interpretation has since evolved into three major contemporary positions:

    • Original Intent

    • Textualism

    • Living Document

Original Intent

  • Core Argument:

    • Key phrases within the Constitution should be interpreted based on the underlying values and intentions of the authors at the time of writing.

  • Further Assertions:

    • The powers conferred to the government by the Constitution should not be altered without undergoing formal constitutional amendments.

    • Also referred to as Originalism or Original Meaning.

  • Strengths:

    • Grounded in historical scholarship.

    • Safeguards against radical re-interpretations of constitutional meaning.

  • Weaknesses:

    • Difficult to determine a singular clear intent from the authors.

    • May limit flexibility in addressing modern issues or unforeseen problems.

  • Historical Note:

    • James Madison is often referred to as the "Father of the Constitution."

Textualism

  • Core Argument:

    • Key phrases within the Constitution should be understood strictly based on the ordinary meanings of the words in the text itself, without referencing external sources.

  • Assertions:

    • The powers given to the government cannot be changed without amending the document.

  • Strengths:

    • Avoids the challenge of determining a single intent of the authors.

    • Recognition that the Constitution has an objective meaning applicable to unforeseen scenarios.

  • Weaknesses:

    • Fails to utilize historical context that may elucidate the Constitution’s meaning.

    • Challenges arise when interpreting confusingly worded sections of the Constitution.

Living Document

  • Core Argument:

    • Key phrases within the Constitution should be interpreted in the context of modern values and societal views.

  • Additional Points:

    • The powers granted via the Constitution can evolve over time without necessitating formal amendments.

    • Also known as Living Constitution.

  • Strengths:

    • Considers social, moral, and technological advancements in its interpretations.

    • Allows for flexibility in addressing contemporary issues.

  • Weaknesses:

    • Potentially disregards the original intentions of the Constitution's authors.

    • Causes uncertainty as the meaning of the Constitution may change with societal shifts.