Essay: Radicals in Conservative Garb

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The Constitution had barely been ratified and the Bill of Rights had not even been passed when the quintessential liberal Democrat, Thomas Jefferson, invoked both strict construction and original intent in opposing the 1791 charter for the first Bank of the United States. Jefferson, a fundamental states'-righter who despised the kind of centralization represented by a federal bank, wrote that the authority to create such a national corporation was "not among the powers specially enumerated . . . by the Constitution." Nor, he contended, should one try to create new powers through interpretation of the document's phrases, for the Constitution "was intended to lace them up straitly within the enumerated powers." But Alexander Hamilton, the consummate Federalist, argued that within the Constitution lay implied as well as explicit authority. Among the former was the power to get things done that needed doing.

The bank stood, and strict construction of the most literal kind took its first major licking. As for the intent of the framers, none other than James Madison, regarded as prime architect of the founding document, told Congress in 1796 that whatever the framers had said or thought "could never be regarded as the oracular guide expounding the Constitution."

Both strict construction and intent suffered again when Jefferson, the unrelenting literalist, became President and was agonizing over the Louisiana Purchase. He could not find in the Constitution either the words or the implication that would permit him to buy the immense territory. But buy it he did, in 1803, under the broad and flexible charter the Constitution already was coming to be. Many legal scholars feel that if the bank did not drive a stake through the heart of strict construction, Louisiana surely did.

The same year, in the celebrated case of Marbury vs. Madison, Chief Justice John Marshall wrote the opinion giving the Supreme Court, indeed the entire judiciary, the power of review that the Administration now believes to be overused. In creating the watershed precedent, Marshall used the very kind of interpretive reasoning Meese finds deplorable in modern cases. Essentially, Marshall declared the 1789 Judiciary Act giving the court jurisdiction in Marbury was unconstitutional. Even though the Constitution nowhere expressly granted the court power to overturn an act of Congress, Marshall insisted the broad thrust of the document was, in fact, to keep lawmakers within the bounds of the Constitution by giving the judiciary the right of review.