“Strict construction” is a taboo phrase, not just for judicial activists looking for unlimited government, but also for most originalists. Perhaps that is because the phrase can mean several different things; or perhaps it is a concession to the reality of the expansive national state in the twentieth century, as if to say Yes, I want to impose some limits, but I’m not one of those crazies. Or, as Antonin Scalia was often known to quip, “I am a textualist. I am an originalist. I am not a nut.”
It is therefore a daring endeavor to put forward an entire, clause-by-clause guide to the Constitution explicitly committed to strict construction. That is what William J. Watkins Jr. of the Independent Institute has done with The Independent Guide to the Constitution. Its first line boldly declares, “This work is a plea for a revival of strict construction of the Constitution” in line with the Jeffersonian tradition.
The guide is radical in all the right ways—pushing hard against ingrained errors, and attempting to “return to the roots.” Its arguments are thus controversial, but it would be a fine thing if they found their way back into mainstream constitutional discourse. The tradition on which Watkins draws was extremely influential at the time of the founding, as he amply shows, even if most originalists today opt to draw from its rival. If we ultimately seek a revival of the original understanding of the Constitution, however, it only makes sense that both dominant ways of understanding it in its infancy should be in conversation.
Jeffersonian Strict Construction
The meaning of “strict construction” in the constitutional context can be slippery. The tradition on which Watkins is drawing should not be confused with the term “construction” as it’s used by originalists today in contrast to “interpretation.” At the time of the Constitution’s ratification and the first decades thereafter, “construction” meant simply “interpretation.”
In a statutory setting, “strict construction” can mean hyper-literalism that ignores context and can sometimes lead to interpretations entirely out of step with the clear purpose of the law. It was in that sense that Scalia once called it a “degraded form of textualism.” This is definitely not what the Jeffersonians meant, nor what Watkins recommends. Indeed, as I’ll argue below, the Jeffersonian approach was quite definitively context-dependent.
A different sense of strict construction informed the way it was used in the early republic. Rather than thinking of it as a theory of interpretation, it may be better to see strict construction as a disposition toward interpretation that emerged from a particular theory of the Constitution. For the Jeffersonians, the powers granted by the Constitution to the federal government ought to be construed narrowly, while the powers left to the states and the rights guaranteed to the people ought to be construed broadly. Watkins quotes the Jeffersonians’ chief jurist, St. George Tucker: “The powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn into question.”
I say that it is not exactly a theory of interpretation because it does not give us a general approach to determining the meaning of words, but rather tells us which side to err on when a range of meanings is possible. And outside of questions about the extent of federal power, the principle does not necessarily guide the interpreter. It does not, for instance, tell us much about how to interpret the phrase “principal Officers” in Art. II, Sec. 1, nor does it indicate what constitutes a “title of nobility” or “Office of Profit or Trust” in Art. I, Sec. 9. Strict construction, rather, is an approach that naturally follows from a particular understanding of the powers granted to the federal government, which in turn depends on a broader conception of the states, the people, and the Constitution.
“Strict construction” was an outgrowth of the belief that the powers of the federal government came only through the positive grant of the Constitution, approved by the people of pre-existing states.
The Jeffersonians held that the American Constitution established a unique federal government. It was not merely a republican imitation of the unitary European states of their day. Most importantly, it was a government that existed as part of a complex system alongside (not over) thirteen other governments, and the entire genius of the American political system depended upon maintaining the division of power between those governments—both authorized by the people of the states.
That understanding of the constitution precluded any appeal to inherent powers—ones that simply exist by virtue of the office or institution in question, or ones that are considered part and parcel of “sovereignty.” One clear example is Article II’s “vesting clause.” When Art. II, Sec. 1 states that “the Executive Power shall be vested in a President of the United States of America,” is it merely establishing the office of the president and stating that the executive power authorized by the Constitution (specifically listed in Section 2) would be lodged in that office? Or is it, with those general words, vesting the president with a broad, undefined power that extends beyond the ones enumerated, the character and limits of which are to be found outside of the Constitution’s text? Those advocating for the latter are apt to look for a general definition of “executive,” drawn from the experience and traditions of other countries, and hold that the president is vested with those powers.
To the strict constructionists, this sort of appeal to inherent power was inapposite to the distinctive American system of divided authority. To use another example, the fact that the authority to charter corporations was traditionally considered inherent in the concept of sovereignty did little to say where it lay as a matter of government authority in America’s unique federal system. (And it should be noted that Americans during this time were quickly separating the concepts of “sovereignty,” which came universally to be understood as lodged in the people, and “government power,” which they held could be divided and distributed in many different ways.)
Strict construction also precluded the simple ends-means rationale championed by Alexander Hamilton and John Marshall in construing the necessary and proper clause. “Let the ends be legitimate,” Marshall famously held, “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 … are constitutional.” That straightforward reasoning is fitting in a unitary system defined by broad purposes.
The Constitution, however, did not establish a unitary system and did not grant power by listing approved ends, to which means could then be reasonably fitted. It rather lists specific powers Congress may make use of to further any number of ends. Certainly, framers had certain ends in mind when granting those powers (they believed the regulation of commerce would generally be used to promote it, for instance), but they explicitly granted Congress the general power (the means), without stipulating specific ends. (An exception that proves the rule is the qualifier that patents may be issued in order “to promote the Progress of Science and useful Arts.”)
It was the peculiar rhetorical genius of Hamilton’s opinion on the national bank that it subtly transformed things like collecting taxes or establishing rules for interstate trade to the status of “ends” or “objects.” This allowed him to distinguish the specific, enumerated powers of the Constitution (now dubbed “ends”) from an unlimited toolkit of “means” the federal government may choose from.
To the Jeffersonians, however, the means-ends distinction was a red herring, for the entire argument was over what means (i.e., distinct powers) are at the disposal of the federal government. Thus, to them, Hamilton’s argument effectively exploded the central pillar that held up the constitutional system—the idea that the federal government possessed only those powers that the people had clearly and unambiguously consented to.
“Strict construction” therefore was an outgrowth of the belief that the powers of the federal government came only through the positive grant of the Constitution, approved by the people of pre-existing states. Accordingly, when the legitimacy of some federal power was in question, it could be justified only when there was clear authorization in the text of the Constitution—it couldn’t simply be assumed to be possessed because it existed in European states, or because it seemed reasonable, convenient, or somewhat related to recognized federal powers.
The Contours of the Ratification Debate
This strict construction approach does not necessarily give specific answers to legitimately hard questions. “Strict” is, after all, a relative term, and taken to extremes, the approach could manifest in quibbling obstructionism as its critics always claimed. Coming to specific conclusions about specific powers would thus still require basic interpretative work: what do words mean, and how are they being used?
For this, the convention and ratification debates are of great assistance. Not because they necessarily provide a clear, unambiguous “original intent,” but because they can supply evidence of how people at the time understood (and argued over) the meaning of the Constitution’s words and phrases. Watkins quotes Jefferson: “On every question of construction [we should] carry ourselves back to the time when the Constitution was adopted, [and] recollect the spirit manifested in the debates … instead of trying what meaning may be squeezed out of the text, or invented against it.”
The guide’s greatest strength is the use of the convention notes and ratification debates. For every section of the original Constitution and each Amendment, Watkins provides the basic contours of the convention debate, showing how the final language evolved (if it did) and what considerations went into the proposals and changes. He then also covers notable Anti-Federalist concerns and the Federalist response to them, pulling from both published writings and state ratification convention notes. Finally, for the vast majority of clauses, he includes a substantial “Distortions” section, showing how far current usage has strayed from the original meaning, and offers suggestions for recovery.
This makes The Independent Guide an excellent resource for anyone working on constitutional history or the politics of the early republic. His use of the debates, however, is not simply a matter of historical record; it is also tied to his case for strict construction. Rather than simply quote-mining Federalists or Anti-Federalists, Watkins approaches the debates around the Constitution from a distinct interpretive framework, one that is essential for understanding them properly, but that is not often appreciated.
The specific flashpoints of the ratification debate occasionally turned on differences in basic principles and commitments. Anti-Federalists, for instance, often held that republican government was impossible in a large country, a view James Madison famously countered in The Federalist by arguing that definitive limits on power and carefully constructed institutions made it possible for an “extended republic” to protect republican liberty without the factionalism that often accompanied it.
But that sort of conceptual disagreement was the exception. Most of the ratification debate took a very different character—that of accusation and defense, with the Constitution itself in the dock. Did it authorize essentially unlimited power to the federal government to legislate for the “general welfare”? Did it create a quasi-monarchical executive? Did it establish an imperial judiciary that would run roughshod over state court systems?
The kind of constitutional construction found in The Independent Guide needs to go hand-in-hand with a broader argument built around it, one that shows that today’s politics calls out for an “Anti-Federal moment.”
On these sorts of questions, the Anti-Federal norms were in ascendancy in the public mind, and the Federalists played on their turf, defending the Constitution in largely Anti-Federal terms, even when they personally disagreed with the principle at stake. Madison, who had pushed in the convention for an open-ended grant of legislative authority and a federal veto over state laws, argued strenuously that the powers delegated to the federal government were “few and defined.” James Wilson, who championed the concept of inherent national sovereignty even before the Constitution, gave one of the clearest, least ambiguous endorsements of strictly enumerated powers in his “State House Speech.” In the Virginia ratifying convention, John Marshall assured skeptics that state courts “will not lose the jurisdiction of the causes they now decide,” and even singled out the dispute over the Fairfax Grant (which would eventually culminate in Martin v. Hunter’s Lessee, establishing the Supreme Court’s authority to overturn state supreme court decisions): “What laws will [these] claims be determined by? By those of this state. By what tribunals will they be determined? By our state courts.”
For Watkins, this dynamic of Federalist reassurances on Anti-Federal terms is an important key for understanding the Constitution’s meaning, especially on the pivotal clauses whose language could be (and was) interpreted in various ways. The commanding standard, for Watkins, is the meaning of the Constitution’s text as understood by the ratifiers. On the contentious questions, therefore, the many public Federalist reassurances about limits of federal power, which convinced many moderate and skeptical delegates to support it, are essential evidence. Indeed, a footnote to the Introduction states that “strict construction means simply holding the Federalists and other friends of the proposed constitution to the promises they made about the strict confines of federal power.”
With this framework, Watkins offers a thorough accounting of the entire Constitution, clause by clause, and of every Amendment. The usual suspects are covered thoroughly: the Preamble (not a grant of authority); the Commerce Clause; the Necessary and Proper Clause; the Supremacy Clause; the Executive Vesting Clause; and the Tenth and Fourteenth Amendments. But the thoroughness of the guide demonstrates how nearly every part of the document has been distorted in some way, either in the courts, the political process, or the public mind. He is skeptical not only of federal lawmaking authority, but also of presidentialism and judicial activism, both of which concentrate power in ways not contemplated by the Constitution. On the latter, he is sensitive to the fact that even some judicial interpretations undertaken in the name of liberty (like an expansive reading of the Ninth Amendment) may only solidify centralized government.
A Viable Alternative?
The obvious objection to Watkins’s effort is not hard to guess: that the constitutional order he describes is, for better or worse, dead and buried. Watkins, after all, isn’t just challenging Warren Court overreach—he is challenging Marshall Court overreach, too. No party or organized movement today is anywhere close to the Jeffersonian position, and we have built our political and economic life around the victories of the early nationalists for two centuries. Thus, the kind of constitutional construction found in The Independent Guide needs to go hand-in-hand with a broader argument built around it, one that shows that today’s politics calls out for an “Anti-Federal moment”; that the problems we face today are tied up intimately with the unlimited expansion of national power. I am confident that they are. But unfortunately, that concept has not found significant traction in the public mind, and politics continues to vibrate between different factions who seek in vain to gain permanent control of national power for their own purposes.
Until that case for an Anti-Federal moment takes hold, even rank-and-file originalists are unlikely to jump on board the strict construction train. (The flagship organization of originalism is, after all, the Federalist Society. An Anti-Federalist Society does not seem to be forthcoming, though I would be happy to be a charter member.) Nevertheless, Watkins deserves a hearing even from those who are not as instinctively sympathetic to his cause as the present reviewer. For several years, legal conservative establishments were willing to give a hearing in conferences, events, and op-eds to “common good constitutionalism,” which for all its misdirections amounted to little more than the belief that we should allow our wise and beneficent rulers to do anything they determine is right. If that is a position worth taking seriously, certainly this is, too.
Common good constitutionalism had no place whatsoever in the American constitutional tradition. The strict construction championed by The Independent Guide does have a place in that tradition. And if originalism seeks to recover the original meaning of the Constitution, and if we acknowledge that there are legitimate questions about that meaning, it stands to reason that the Jeffersonian position, which held considerable sway in the founding era and early republic, ought to have a place at the table today.
