A Plea for Strict Construction 

Does the U.S. Constitution even work anymore? It may not be a pleasant question to ask, but it is hardly distant from the minds of many Americans. The federal government seems bigger and more bloated than ever, with the tentacles of the administrative state touching nearly every aspect of our lives. Centralizing authority has extended its economic and social control by assuming powers the Framers never intended to give it. From a certain point of view, the whole concept of republican self-government can seem like a tragic joke. 

In The Independent Guide to the Constitution, legal scholar William J. Watkins, Jr. offers a provocative solution that may restore the Founders’ vision: strict construction. Building on the constitutional thought of Old Republicans such as John Randolph of Roanoke, St. George Tucker, and John Taylor of Caroline, he articulates a serious alternative to the ways of (mis)interpreting the Constitution that dominate legal discourse today. According to Watkins, the strict constructionism these Old Republicans advocate is a more solid ground for originalism than various theories presently en vogue. 

In many ways, some form of the strict constructionism Watkins advocates must be at the heart of any kind of constitutional revival. By making the Constitution itself the fulcrum of American politics, we would both lower the stakes of some of our most heated debates and return a concern for liberty to the forefront. Many of Watkins’s recommendations, including a renewed federalism, judicial restraint, and a return to the limits of enumerated powers, are altogether salutary. At the same time, though, his dedication to the particularly Jeffersonian school carries his argument a bit too far—especially as regards executive power and the original Federalists’ historic vision for the Constitution. Nevertheless, he deserves great credit for drawing his readers’ attention back to the fundamental axioms of the American political tradition. 

Deep Roots  

Watkins begins by drawing a stark distinction between the approach he is trying to revive and much of what is now called the originalist movement. “Modern originalist scholars too often practice their craft in a manner that augments federal power rather than seeking to cabin it,” he argues in the introduction. By contrast, the strict constructionists of the eighteenth and nineteenth centuries “sought to promote self-government and policy experimentation in the states.” While Watkins acknowledges the contributions of many originalist thinkers, he is clear-eyed about the ways liberals sometimes use the rhetoric or concepts of the approach to promote their own favored policy outcomes in disputes about constitutional interpretation. After all, as he points out, if a jurist such an Elena Kagan can claim the label, how meaningful can it really be? 

As stated above, strict construction has its roots in the Old Republican thinkers who rose in opposition to centralization in the early nineteenth century. They advocated what John Randolph described as “the plain, common-sense construction of the Constitution,” which denied the notion that the federal government could exercise a certain power unless it was explicitly granted in the text itself. His fellow Virginian, John Taylor of Caroline, was perhaps the greatest theorist of strict construction, arguing especially in his 1820 work Construction Construed and Constitutions Vindicated that it alone was the basis of true republican self-government.  

In his biography of Randolph—the first book he published, in fact—Russell Kirk argued that the Old Republicans advanced strict construction because they believed it alone could control power and preserve liberty. As he put it: 

The great object of Randolph and the Old Republicans, in a political sense, was the restriction of the power of government to that sphere specifically assigned by constitution and precedent. They admitted that at times such a jealous interpretation might lead to a passing difficulty; they conceded that temporary benefits might sometimes be got by exceeding the letter and spirit of the law. But, they declared, these annoyances or restrictions must be endured if free government and constitutional rights are to be maintained. 

Strict construction was the elevation of this “jealousy” to constitutional theory. Its advocates shared Anti-Federalist fears that the exercise of federal power would lead to “consolidation” and reduce the states to what many called “mere departments.” They thought of the states as genuine republics of their own, and they grasped for a method of interpreting the Constitution that would enable them to rule as such. They arrived at a theory of popular sovereignty that held the federal government could only exercise powers it was explicitly granted in the text of the document itself, as ratified by the people of the states in convention. 

The Old Republicans’ “jealousy” also admirably defines Watkins’s own distinctive approach to originalism throughout his book. The bulk of it is dedicated to a close reading of each of the clauses of the Constitution, from the Preamble to the amendments. Watkins presents the original purposes of each measure, followed by historical and legal background, and then a discussion of what he calls the “distortions” of later interpretations as well as a proposed set of solutions. It is an incredibly instructive way of learning not only the method behind strict construction, but also the history and meaning of the Constitution itself. In that sense, Watkins provides a civic education just as much as his expert legal analysis. The project bears something of the spirit of Publius. 

Take, for example, the treatment Watkins gives to legislative power in Article I. He cogently explains how, in the Founders’ republican vision, it is meant to “predominate.” Many of the checks and balances of the Constitution—and chiefly the enumeration of specific powers—are therefore designed to limit the legislature and channel its energy to specific ends. The rise of the administrative state, though, Watkins argues, distorts these principles and violates the doctrines of popular sovereignty on which they rest. He certainly affirms that a judicial revival of nondelegation doctrine would be salutary, but he also recognizes that such a thing is unlikely to solve the problem completely. Instead, he argues that “only the constituent power”—that is, the people themselves—“can serve as the needed check.” In this sense, his study of the Constitution both illuminates the original intent of the Framers and spurs his readers to political action. 

The Limits of Jealousy 

Throughout the book, Watkins’s laudable “jealousy” can also be detected in his defense of states’ rights. Unlike many modern jurists and constitutional scholars, he maintains with Publius in Federalist 34 that “as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” Watkins holds. that that “a proper federalist balance between the states and the national government is at the heart of strict construction originalism,” and fidelity to that arrangement of power can resolve many of the thorniest constitutional questions the Republic faces. 

At the same time, we must acknowledge the limits of jealousy. As Publius writes elsewhere, “it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution.” The great virtue of strict construction has also always been its great vice. In these days of federal bloat and noxious centralization, jealousy may well be a tonic to our ills. Certainly, it would be an aid to wresting back sovereignty from the bureaucratic and judicial oligarchies that threaten to tyrannize the people. Yet, persuasive as Watkins often is with regard to particular questions, his strict constructionism only gives us part of the picture when it comes to the American political tradition. 

These limitations are perhaps clearest in Watkins’s treatment of the executive power. To be sure, any conservative in his right mind ought to be outraged by the overabundant use of executive orders and the obvious Bonapartism of the modern presidency. But much of Watkins’s interpretation of Article II revolves around a Jeffersonian anti-monarchism that has its roots more in partisan disputes than in original intent cooly considered. As is the case often throughout the book, Watkins makes it clear that he finds the Anti-Federalist critiques of the Constitution of 1787 prescient; his interpretations of federal power, especially the executive, are designed in some ways to present their views as the definitive “strict construction” of the document.  

During the Founding, though, Alexander Hamilton was the earliest and perhaps most cogent critic of this sort of constitutional interpretation. While his detractors accuse him of “loose construction,” this oversimplifies his approach; as scholars such as Carson Holloway have argued, Hamilton and other Federalists were just as committed as their opposition to a reading of the Constitution that limited the federal government. What the Federalists understood was that the Constitution’s delicate balance of power required energy to be efficacious in the first place. At their best, they sought to identify a method of strict construction that still allowed latitude for actually governing the Union. 

Outside of his contributions to The Federalist, Hamilton’s fullest articulation of his approach to constitutional interpretation came in a series of essays he wrote under the pseudonym Pacificus. Though Watkins dismisses the Hamiltonian construction of executive power in this work as a “distortion,” it reveals a mature way of strictly interpreting the Constitution without becoming intransigent. Defending President George Washington’s Neutrality Proclamation of 1793, Pacificus argued that, according to “the rules of sound construction,” it is “natural and obvious” that the executive can exercise prerogative in foreign affairs. With certain exceptions, he wrote, executive power is “completely lodged” in the presidency. “In this distribution of powers the wisdom of our constitution is manifest,” Pacificus concluded.  

Simply denouncing this arrangement as seeming too “kingly” or trying to reinterpret the Constitution for the sake of executive minimalism is hardly a strict construction of the Framers’ real intent. Hamilton and his followers were genuinely committed to limited power—they were no advocates of a backdoor Hobbesian absolutism. Whatever tendencies toward “big government” one may detect in the policies of the Federalist Party, construing them as somehow possessing a proto-progressive agenda is a serious distortion. They were by no means social revolutionaries, and they had little appetite for the kind of central planning that would mark the consolidationist schemes of later figures. Insofar as historians and legal scholars neglect these Early Republic conservatives’ own method of strict construction, they obscure the actual tools within our tradition that could lead to a restoration of liberty.  

The Beauty of the System 

Despite these comparatively narrow qualms about the most fundamentalist tendencies of “strict construction,” I acknowledge that the theory as a whole would be a marked improvement over what largely passes for constitutional interpretation today. In his introduction, Watkins rightly trains his fire on two scholars who represent everything wrong with the legal clerisy: Adrian Vermeule and Cass Sunstein. On the right, Vermeule is a self-declared “common good constitutionalist” who seeks to use the broadest imaginable construction of the General Welfare Clause to justify what he has described as “integration from within” or, more plainly, the imposition of what amounts to theocracy on the American people. On the left, Sunstein claims to be upholding “liberal principles,” but his proposals to use the federal apparatus to “nudge” people into what he considers better life choices amount to a similar abuse of power. Although both scholars cloak their intentions with legalese, they have little interest in interpreting the Constitution at all—they are simply interested in covering the raw exercise of power with the fig leaf of “living constitutionalism.” Strict construction such as Watkins advances can ward off this intolerable tyranny.  

Watkins writes that the goal of his book is to help Americans see the “beauty” of our constitutional system. “Strict construction originalism is perhaps the best vehicle of constitutional preservation,” he contends, and therefore “should remain our North Star as the Constitution takes us further into the twenty-first century.” He is altogether correct. Our liberty will only be preserved if we look to what Edmund Burke often called “the wisdom of our ancestors.” “There ought to be a system of manners in every nation which a well-formed mind would be disposed to relish,” the Irish statesman wrote in his Reflections on the Revolution in France. “To make us love our country, our country ought to be lovely.” Watkins’s reflections on our Constitution help us understand all the better precisely what makes the wisdom of our own ancestors so lovely. 

Strict construction, as Watkins understands it, is therefore not preservation as a mere antiquarian impulse. The true beauty of the American Founding is that it is rooted on the hope that “societies of men are really capable … of establishing good government from reflection and choice.” Throughout this book, it is evident that our author wonders at how the almost providential wisdom of the Constitutional Convention of 1787 achieved that—and such wonder is the very basis of political philosophy. It is only by recovering such a sensibility that Americans may make our Constitution efficacious once again. 

Image licensed via Adobe Stock.