Theory of strict construction
Jon Roland, 1999/02/04
The perennial source of confusion regarding constitutional interpretation, one
that even the founders suffered from, arose from the conflict between
requiring a supermajority to amend the Constitution, but only a majority to
interpret it. The latter has led scholars astray, because it encourages them
to give equal weight to the opinions or lack thereof of every founder.
Much of that confusion could be avoided if one were to keep in mind that what
the Constitution was about was the delegation (not relinquishment) of powers
to a set of public officials, and that the question of whether a power had
been delegated needs to be answered according to the principles of the ancient
law of agency.
We find the key to this in the Latin maxims:
Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non praesumitur pro potentia. In cases of doubt, the
presumption is not in favor of a power.
The implication of these principles is in conflict with the doctrine presuming
the constitutionality of legislation, and putting the burden of proof on those
seeking to judicially nullify it. If properly understood, the burden would be
on the government to prove it has the power, and in cases of doubt, the
decision would be that it does not.
A further implication would be that in any case before a multi-judge tribunal,
a decision sustaining a power of government would have to be unanimous, and,
conversely, it would have to be unanimous to deny a right of a person against
the exercise of a power of government. The problem with this rule, of course,
is, that we would have to also require that the question of whether the issue
involved a power of government or a right against such power be decided by
unanimous vote, and that could lead to every decision on every question having
to be unanimous, making it difficult to decide many cases.
Of course, there is also a problem in interpretation that people try to
discern the meaning of provisions separately from one another, when in fact
they comprise a functional unity. The Constitution was intended to cover every
legal issue the framers were aware of, so if we find one they apparently
overlooked, we are justified in interpreting provisions that do not seem, from
their language, to cover the case, but which convey the functional intent to
do so. An example of that would be the prohibitions on "titles of nobility".
Some would interpret the restriction strictly, as prohibiting only those
"titles" in use in Europe at the time of ratification, but if we keep in mind
that it is delegations of authority that must be interpreted narrowly, and not
restrictions on that authority, and that there can exist a form of abuse of
power in which certain persons are granted privileges, immunities, or
protections that put them "above the law" or make them a special privileged
class, and that such is what was contemplated in the prohibitions, then we can
reasonably infer that the prohibitions are not on "titles" as such but on the
substance of making persons functional "nobles".