Strict & Loose Constructions of the Constitution

Strict & Loose Constructions of the Constitution
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  • 0:02 What Does Strict vs.…
  • 1:02 Strict Construction
  • 3:32 Loose Construction
  • 5:24 A False Dichotomy?
  • 6:11 Lesson Summary
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Lesson Transcript
Instructor: Evan Farr

Evan has taught introductory and advanced courses in political science, philosophy, and general education. He has a Ph.D. in Government.

In this lesson, you'll learn the difference between two philosophies of constitutional interpretation: strict construction and loose construction. You will also learn the historical, political, and legal significance of the terms, as well as how they apply to contemporary legal controversies.

What Does Strict vs. Loose Mean?

For a document that has been the supreme law of the land in the U.S. for more than two hundred years, the United States Constitution can be awfully controversial. Indeed, a quick perusal of some of the country's most contested political issues reveals that many of them boil down to differing interpretations of sections of the Constitution itself: Abortion? Check - Due Process Clause. Campaign finance reform? Check - First Amendment. The Affordable Care Act, also known as 'ObamaCare?' Check - Interstate Commerce Clause.

Two general approaches to the Constitution most often inform where judges come down on these disputes. Strict construction refers to a philosophy of constitutional interpretation that holds that the Constitution should be interpreted and applied based on a precise reading of the text and the text alone. Loose construction, also known as broad construction, holds that legal interpretation requires applying knowledge from outside the Constitution's text, such as history, scientific findings, and political circumstances.

Strict Construction

In the most precise definition of strict construction, judges and Supreme Court Justices aim to use only the text of the U.S. Constitution and the facts of the current case in making their decision. For instance, an adherent of strict construction would resist declaring there to be constitutionally protected rights that are not explicitly enumerated in the text of the document. In the example of abortion, strict constructionists tend to dismiss the idea that there is a constitutional right to have the procedure because no such provision exists in the Constitution itself.

They may argue that when judges make rulings that depart from a narrow reading of the text, an approach they call judicial activism, the floodgates are opened to a wide range of biases, with the only limit on the meaning of the Constitution being the imaginations of the nine unelected members of the Supreme Court.

Historically, the most influential early strict constructionist was probably Hugo Black, who served as an Associate Justice on the Supreme Court from 1937 to 1971. In a case concerning the limits of the First Amendment right to free speech, Black famously wrote that I read 'no law . . . abridging' (freedom of speech) to mean no law abridging, often simplified to no law means no law. In this particular case, Justice Black meant that the State of California was acting unconstitutionally when it charged a bookstore owner with selling obscene materials--if 'no law means no law,' then even obscene speech is protected by the First Amendment. More recently, Antonin Scalia had been a leading strict constructionist, frequently dissenting from majority opinions based on what he considered overly broad and political readings of the Constitution.

Clarence Thomas, who joined the Court in 1990, is associated with the similar constitutional interpretive school of originalism. Under originalism, judges and Justices are committed to interpreting the Constitution and other laws based on the original intent of the framers. Rather than arguing that 'no law means no law,' then, originalists would argue that limitations on free speech are acceptable so long as they would have been approved by the First Amendment's authors in 1791. Both originalism and strict construction are closely associated with political conservatism and are often integrated in public discourse. However, because originalism involves inferences about the intent and historical conditions of the framers, it is a distinct interpretive school from strict construction.

Loose Construction

Unlike strict construction, loose construction is not a single legal philosophy with self-described partisans. Rather, you can understand loose construction to simply be the antonym of strict construction: it encompasses the range of interpretive methodologies that rely on more than a simple reading of the plain text of constitutional provisions.

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