Argument Began in 1791
Strict Constructionism or Judicial Activism?
By Bob Stephenson

“Strict constructionism” and “judicial activism” were two terms that came into play quite frequently in the last presidential election. A core constituency of one of the major political parties made the title of this article one of their chief weapons of attack as it pertains to the almost certainty there will be at least one, and possibly four, vacancies on the U.S. Supreme Court.

This group has long clamored for what they say are “strict constructionists” who will interpret the Constitution as the original authors of the Constitution meant it to be interpreted. I do personally have a problem trying to glean back through many decades what someone really meant when they wrote something.

I’m no authority on the Constitution, but I did have a sense – wrong as it turned out – that the argument about “strict constructionist” was a fairly recent one. So I got a surprise while reading an excellent new biography, Alexander Hamilton, by Ron Chernow, that revealed the first argument about strict constructionists occurred in February 1791.

Almost before the ink was dry, some of the original draftees were questioning its interpretation. (The Constitution was signed in 1787 and finally ratified by the states in 1791.)

“On January 20, 1791, a bill to charter the Bank of the United States for a 20-year period virtually breezed through the Senate. Chernow stated at that point nothing presaged the chasm about to yawn in America’s politics” (Chernow, page 349). This chasm led to the creation of the first political parties and animosity between Alexander Hamilton, Thomas Jefferson and James Madison. On one side was Hamilton and on the other side were Jefferson and Madison.

Chernow explains that “Madison recreated himself as a strict constructionist of the Constitution” (Chernow, page 350). He uses the word “recreated” because earlier Madison was considered to have a more liberal interpretation of the Constitution, but Madison’s dislike of Hamilton sent him in the other direction. An example of the way Madison originally believed is this comment from Chernow:’”Before the House voted on the bank charter, Madison … changed his position and stated, ‘Reviewing the Constitution… it was not possible to discover in it the power to incorporate a bank’” (page 350).

What’s the problem? The basic argument that existed then and still today is states’ rights as opposed to federal rights. Hamilton, considered today to be the father of the greatest industrialized democracy in the world, was absolutely on track in predicting the future of the United States. Madison, and particularly Jefferson, wanted a more agriculturally controlled economy. Rather than building factories and industry here, they thought it would be better to import and keep life here simple.

It’s certainly obvious today that Hamilton was more perceptive than the others. Chernow stated, “For that reason, historian Clanton Rossiter insisted that Hamilton’s works and words have been more consequential than those of any other American in shaping the Constitution under which we live” (page 355).

To support his argument for the National Bank, Hamilton turned to the Constitution, Article I, Section 8 and the last clause (18) of that section to turn the argument in his favor. Although it was very innocuous on the surface, Hamilton used the clause to his advantage. This catchall clause in part says to make all laws which shall be “necessary and proper to exercise its listed powers” (page 350, emphasis added).

The House accepted Hamilton’s argument, and on February 8, 1791, passed the bill easily by a margin of 39-20. Hamilton thought he was home free, but Madison lobbied heavily for President George Washington to veto the bill.

To figure out whether the bill squared with the Constitution, Washington canvassed some of his cabinet. Chernow said Washington first asked Attorney General Edmund Randolph, “who wrote a weakly-reasoned piece contending the bank was unconstitutional” (page 351). Washington then turned to Secretary of State Jefferson who jumped into the fray with vengeance.

Chernow states, “In a concise opinion, Jefferson blasted the Bank of the United States as unconstitutional on the grounds that Hamilton was perverting the ’necessary-and-proper’ clause. To pass the Constitutional test, Jefferson said a measure had to be more than just convenient in executing powers granted to the federal government: it had to be truly necessary – that is, indispensable. Taking literally the Constitution’s recitation of congressional powers, he prophesied that “to take a single step beyond the boundaries thus specifically drawn…is to take possession of a boundless field of power no longer susceptible of any definition” (page 352).

Just how vehemently Jefferson opposed the new bank can be inferred from what Chernow called a fire-breathing letter he sent to Madison the following year (after the central bank was already established). Governor Henry Lee of Virginia proposed to open basically a branch bank of the central bank. Part of Jefferson’s letter states, “The power of erecting banks and corporations was not given to the general government; it remains with the state itself. For any person to recognize a foreign legislature (Jefferson was talking about the U.S. Congress) in a case belonging to the state itself is an act of treason against the state. And… whosoever… whether by signing notes, issuing or possessing them, acting as director, cashiers or in any other office… shall be adjudged guilty of high treason and suffer death accordingly” (page 352).

“In other words the principal author of the Declaration of Independence, (Jefferson),” Chernow says, “was recommending to the chief architect of the U.S. Constitution (Madison) that any Virginia bank functionary who cooperated with Hamilton’s bank should be found guilty of treason and executed” (page 352).

(Some campaign rhetoric was pretty brutal in 2004, but I believe colonial days were worse, including dueling. Aaron Burr killed Alexander Hamilton in a duel in 1804.)

President Washington was shaken by the negative version rendered by Jefferson and Randolph so he rushed them to his Secretary of Treasury (Hamilton) for comment. From what I have read on Hamilton, he was a master at both writing and speaking, much more so than most, particularly Madison and Jefferson.

“In slightly more than a week, Hamilton, the human dynamo, elaborated a treatise of nearly fifteen thousand words that cover almost forty printed pages in his collected papers” (page 353).

Among his arguments: “To liberate the government from a restrictive reading of the Constitution, Hamilton refined the doctrine of ‘implied powers,’ that is, that the government had the right to employ all means necessary to carry out powers mentioned in the Constitution” (page 353).

Hamilton told Washington, “that, if adopted, principles of construction like those espoused by the Secretary of State (Jefferson) and the Attorney General (Randolph) would be fatal to the just and indispensable authority of the United States.”

Then, in blazon italics, Hamilton trumpeted his main theme:

“Now it appears to the Secretary of Treasury (Hamilton) that this general principle is inherent in the very definition of government and essential to every step of the progress to be made by that of the United States: namely 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” (page 354).

“Hamilton waved away complaints that the Constitution did not explicitly mention a bank: ‘It is not denied that there are implied as well as express powers and that the former are as affectedly delegated as the latter.’ To argue as did Jefferson that all government policies had to pass a strict list of being ‘absolutely necessary’ to the performance of specified duties, would paralyze government.” Chernow goes on to say, “He (Hamilton) was crafting a rationale for the future exercise of numerous forms of federal powers” (page 354).

When Hamilton gave Washington his defense of the bill, he was so impressed that he did not bother to check with Jefferson and signed the banking bill the next day (page 354).

“Hamilton’s plea for the bank had a continuing life in American history, partly from the influence it exerted upon Chief Justice John Marshall. When Daniel Webster made oral arguments for the Second Bank of the United States in the landmark case of McCulloch v. Maryland in 1819, he quoted Hamilton’s 1791 memo to Washington on the necessary-andproper clause (emphasis added). In words that distinctly echoed Hamilton’s, Marshall said that necessary didn’t mean indispensable so much as appropriate.

Flexibility for the Future

Repeatedly in American history, Hamilton’s flexible definition of the word necessary was to free government to handle unforeseen emergencies. Henry Cabot Lodge later referred to the doctrine of implied powers enunciated by Hamilton as ‘the most formidable weapon in the armory of the Constitution…capable of conferring on the federal government powers of almost any extent’ (page 355).

A confirming source of the power of current thoughts in influencing an interpretation of the Constitution occurred recently when I caught the last 15 minutes or so of an interview Roger Mudd had with Supreme Court Justice Sandra Day O’Connor on the History channel.

The substance of the question was: What was Justice O’Connor’s reaction to those who say the courts, and particularly the Supreme Court, were acting more like lawmakers rather than strict interpreters of the Constitution?

I believe her answer was the same one Alexander Hamilton would make today if he were still alive. Justice O’Connor said she believes the writers of the Constitution were quite wise in penning a document in a very broad manner because they realized there was no way they could forecast events in the future. She indicated signers had wisely left to future interpreters to make decisions that fit the realities of that date. For that reason the courts listen to arguments as presented by proponents and opponents and then come to a majority decision.

I infer from her answers that it really isn’t a question of a strict interpretation of the Constitution, but it was the intent of the founding fathers that future judiciary would have the same “implied powers” that Hamilton referred to in his 1791 banking bill.

Neither the term “strict constructionist” nor “judicial activist” is relevant to today’s interpretation of the Constitution, in my view. It has been demonstrated that starting at its inception broad interpretive powers have been given to the three branches of government. All the elected or appointed officials do is deliberate and come to a decision.

Personal Bias Rules

It seems if the decision happens to agree with one’s view, then the Constitution has been interpreted correctly and probably the way the original writers intended. However, if the decision goes against one’s views, obviously “judicial activism” has occurred. It really boils down to whose ox is being gored.

Our system has really worked quite well, and we are quite fortunate to live in a country where we can aggressively debate issues – whether it is about interpretation of the Constitution or interpretation of biblical passages.

A Baptist Parallel

I believe that the “strict interpretation” of the Constitution argument is quite similar to the “inerrancy argument” in the Southern Baptist Convention (SBC).

The SBC has padlocked the Bible with its 2000 Baptist Faith and Message, and all who don’t agree are asked to leave. These same folks want a similar padlock put on the Constitution to fit what they perceive to be true.

Bob Stephenson, a layman from Norman, Okla., is co-chairman of the Mainstream Baptist Network.

January 2005