Strict Constructionism - History

History

The use of the term strict construction in American politics is not new. The term was used regularly by members of the Democratic-Republican Party and Democrats during the antebellum period when they argued that powers of the federal government listed in Article I should be strictly construed. They embraced this approach in the hope that it would ensure that the bulk of governmental power would remain with the states and not be usurped by the federal government via novel interpretations of its powers. Perhaps the best known example of this approach is Jefferson's opinion arguing against the constitutionality of a national bank. Because the vagueness of Article I inevitably lent itself to broad interpretations as well as narrow ones, strict constructionists turned to the somewhat restrained descriptions of the powers of Congress that were offered by advocates of the Constitution during ratification. Thus, politicians who identified themselves as strict constructionists embraced an approach to constitutional interpretation that resembles what we today call originalism.

A broadly accepted, but possibly apocryphal, story has Davy Crockett delivering a speech called "Not Yours To Give", in which he urged the United States Congress to reject an appropriation for a Naval widow on the grounds that Congress had no Constitutional authority to give charity. He was said to have been inspired to this view by Horatio Bunce, a constituent in his district and by accounts given, a strict constructionist.

The term began to be used by conservative and moderate Republican presidents beginning with Richard Nixon in 1968 when he was running for election. His pledge was to appoint judges that interpret the law and reinstate "law and order" to the judiciary. He appointed four judges that seemed to be of that philosophy. One of them, however, developed a liberal philosophy, while another became a moderate. The other two were in the mold of what most think of in terms of strict constructionists. Gerald Ford, when running to serve a full term of his own distanced himself from the issue of appointing judges. Ronald Reagan, however, also promised "Strict Constructionists". All three of his US Supreme Court judges loosely fell into this category. Still one was more of an originalist while the other two were fairly conservative. Every major Republican nominee since Reagan has promised to nominate only strict constructionists for the US Supreme Court and mostly such judges for other federal courts.