Strict Constructionist v. Loose Constructionists

The U.S Constitution was ratified on June twenty-first, 1788, when the ninth state, New Hampshire voted to ratify the document. When the framers first went in to amend the Articles of Confederation, little did they know they would come out with a completely new governmental system and a completely new document setting out the rules and ideals under this new government. Even though the Constitution was not ratified under the same rules as the Articles of Confederation under which the framers were governed at the time, they decided that they would use the basis stated in the constitution they were attempting to ratify. Some may say that this action was wrong, but how were they ever supposed to change the system of government with so many issues, under a system where change was basically impossible.

Under the idea of loose Constructionism, the Constitution was the be taken as a broad guide to run the government but it was intended to be changed in accordance to the changes of society. When the Constitution was ratified, how were the Founding Fathers supposed to anticipate the changes that would occur even in the next decade after its ratification. Even the Founding Fathers knew they could not possibly know what the future would hold for the United States. The idea that the founders added the “necessary and Proper Clause” sums it all up, they knew that the Constitution would need to be changed in some aspects to account for the changes that would occur over time. Also at the time of the ratification, African Americans were not legally able to vote and only counted 3/5 of the African American slaves for representation in the House. There was so much inequality whether racially or between genders, the Constitution did not protect the right of women or African Americans. the Constitution did not even address slavery, one of the most corrupt ideals under the Articles of Confederation. There were so many issues that arose after the ratification of the Constitution, which led to the adoption of the Amendments. According to Attorney General Mitchell in a New York Times article, “the Supreme Court cannot be bound by such a literal, historical reading of the Constitution: it must consider sociological changes.”

According to strict constructionists, the Constitution was to be taken word for word. In the New York Times article, an African American man is accused of armed robbery, he had other felony convictions, but was held without bail which goes against the eighth Amendment of the Constitution.

However the Preventive Detention Act of 1971 that was passed by Congress, stated that the courts could refuse bail in order to prevent them from committing more crimes. Even though people such as President Nixon defines loose constructionism as uncontrolled, and liberal according to the New York Times Article The Same Justice Can Be Both a Strict And a loose Constructionist, he also was the one pushing for the Preventive Detention Act of 1971. The idea that one could be both a strict and loose constructionists is an idea that I agree with. There are certain instances that require changes to the Constitution in order to account for social changes within the U.S., such as slavery and the rights of African Americans and women. Also, the U.S. has changed and grown since the ratification of The Constitution, which shows the requirement of changes that are needed to preserve our country and react to the changes that occur over time. However you cannot give Congress the power to just change what they think is needed, this creates too many gray areas, and where do you stop. This idea could result in a complete change to the Constitution, basically rewriting the document again which would put the country in turmoil.

http://http://www.nytimes.com/1970/05/24/archives/the-same-justice-can-be-both-a-strict-and-a-loose-constructionist.html

5 Responses to "Strict Constructionist v. Loose Constructionists"

Spencer Yacos says:

September 14, 2017 at 1:34 pm

Although I think Emily brings up a lot of good points, I believe that the strict constructionist side of the Constitutional argument could be better explained and understood. As seen in my own blog post last week, I am very in favor of a loose interpretation of this two hundred year old document. However, the merits of a strict interpretation are easy to see once the spirit of such an argument is understood. Strict interpretation does not mean follow the Constitution letter to letter, rather interpret the intention of what the founding fathers meant by analyzing the context of certain passages and amendments. One of the strongest supporters of this method was Justice Scalia, who stated that the “only good Constitution was a dead Constitution”. Therefore, when more progressive judges use the Constitution to approve new rights for minorities and the disenfranchised, Scalia was always a dissenting opinion. Not only because these rights weren’t explicitly stated in the Constitution, but also because the authors of the document never intended there to be rights or protections for these people when they wrote it.
Although it is easy to see the drawbacks of such a narrow view of the Constitution and law, it is at the very least respectable to look at the sentiment behind Scalia’s actions. The founding fathers DID have a way of circumventing the Constitution – by amending it. This process was intentionally made very difficult because they were trying to send a clear message: our word is final. By extension, if federal judges have the power to “interpret” the law anyway they please, they are, in Scalia’s eyes, circumventing the amendment process and weakening it as a whole. A couple of Judge’s opinions on a certain law can become just as powerful, if not more, than 67 Senators and hundreds of representatives who worked to approve that change. Strict constructionists like Scalia conceded that America and American law was indeed changing, but their idea of how we should react to that change – hard reform vs reinterpretation – is what makes their opinion so controversial but intriguing.

https://www.nytimes.com/2016/02/15/opinion/justice-antonin-scalia-and-the-dead-constitution.html?mcubz=3
Margaret Castelli says:

September 14, 2017 at 3:39 pm

I think your post is strong, and brings up many good points, however, I would have to disagree with the idea that one can be both a strict and loose constructionist. This point seems somewhat illogical to me. How can a person feel at sometimes that the Constitution is meant to be loosely interpreted and at others closely? Though this is the course that many politicians take today, using the words of the Constitution when it fits their agenda and rejecting it when it does not, I believe that it is absolutely hypocritical to interpret the constitution just to move one’s political goals.
However, I know that one cannot absolutely interpret the Constitution loosely or otherwise, as society today has deemed some rights or amendments more important than others. This is especially clear in the importance of the first amendment rights and, say, the portions of the Constitution condoning slavery. Though there are a few examples of where practicing both loose and strict constructionism can be considered “okay,” this power is commonly abused by citizens and politicians alike.
All in all, I would say that being both a strict and loose constructionist is a good idea in theory but can be so easily abused by legislators. This can be evidenced by politicians claiming the 2nd amendment gives full freedom to access any and all guns, but then citing the Bible as a reason to deem abortion unlawful, even though the first amendment clearly states we all have freedom of religion. Clearly, this is an extremely complex issue that needs to be further investigated.
Alyssa Holt says:

September 17, 2017 at 4:22 pm

While I appreciate your explanations of strict and loose constructionists views, I am still slightly confused as to how the two views could be shared successfully. I certainly agree that as the country progresses there are things such as the 3/5s rule and women’s rights to vote. As long as the general ideas that the constitution set out to protect are still recognized amendments are necessary. I understand that you feel leaving to much room for interpretation could lead to a gray area but isn’t this gray area created anyways if you are trying to figure out when to take the constitutions words at face value or whether they need to be amended to fit society’s current state. There is a still a question of what should be changed and what should be left alone.
I also think it’s important to remember that allowing for interpretation and amending of the constitution does not just give the politicians a right to change anything they please. Not only are there the checks and balances between the three branches of government, but there are also so many people involved in each branch that one person does not have enough power to drastically alter the basic foundation of our country.
Colby Ritten says:

September 17, 2017 at 10:02 pm

Nice work. I think you had a very interesting and detailed post on the topic of loose and strict constructionists. In todays society, interpreting the constitution is a big issue due to how long ago it was written and how our society has changed through time. Even though our founding fathers meant to make the constitution as broad as they could because they knew our society would change, it still couldn’t help the issue of how strict or loose we should interpret it. One good example of an interpretation issue is gun control. In the 2nd amendment, it gives us the right to bear arms which allows ordinary citizens today to own a legal fire arm. Over-time, the manufacturing and technology of the modern day firearms has increased tremendously. In the early years of America, an ordinary firearm would consist of one bullet and a long reload time. Now, as technology has advanced, common firearms are able to hold multiple rounds and fire more bullets per minute. With all of these mass killings that have occurred recently, such as the pulse night shooting in Florida, pro-gun control people are pushing hard for stricter gun laws even though it could infringe on our rights. This is where the interpretation of the 2nd amendment would come into play. People should have the right to bear arms but the question now is to what extent? Are these assault rifles that can carry up to 50 rounds necessary? Places such as California are now creating laws that prohibit a magazine size (The place where the ammunition is stored) of more than five rounds. Do you think our fathers would of thought differently if they would have known how much of a dispute these modern day firearms have created? Although we would never know what they would do, I would predict that they would obviously still keep the amendment but create more laws to stricken the control of guns. This is just one issue of strict and loose constructionism which shows how much more we need to look into how we view our constitution.
Camryn Travis says:

September 17, 2017 at 11:56 pm

I think that all Framers were strict constructionists when the U.S. Constitution was originally ratified. They had to be in order to successfully pass the document amongst their own communities. I personally do not think the addition of a “necessary and Proper clause” meant the framers were loose constructionists, but were instead well aware that they would not be able to fully incorporate every law of the land. To me a loose constructionist is someone that believes the Constitution should be the skeleton of American law. A strict constructionist believes the Constitution is the law of the land and should be followed verbatim. Had the Framers not been strict constructionists they would not have worked as hard as they did to create an all encompassing and thorough Constitution. The pure nature of a strict and loose constructionist prevents from one being the other. I think that if someone finds a ‘grey area’ within a part of the Constitution, no matter how small, they are by default a loose constructionist.

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