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The Eternal Dispute: Constitutional Interpretation

Few would argue that the American Constitution is not a historical and political marvel that radically transformed the nature of government forever. It not only provided stability to the fledgling nation, but it also gave the new republic the chance to prove to the world that the republican experiment could work. However, this document created a major dispute in less than five years that ultimately became the fundamental disagreement in American political thought throughout the entire history of the republic: should the Constitution be interpreted strictly or broadly? . The Constitution arose out of a need to address the flaws of the previous government of the United States, the Articles of Confederation. Under the Articles, the only national political body was a Congress with extremely limited power and no way to enforce the powers it did have; all political power resided with the states. In 1787, a Constitutional Convention was called to remedy these problems and the resulting document created a much stronger central government with a clear separation of powers among three branches of government (legislative, executive, and judiciary) as well as a system of federalism in which the federal government shared power with the state governments.

However, the Constitution has created incredible disputes among the American populace. One of the fundamental disagreements ultimately led to two radically divergent interpretations of the Constitution. In the convention, two factions emerged: the Federalists favored a strong central government and were generally in favor of the Constitution while the Anti-Federalists favored a limited central government with more emphasis on states’ rights and were more skeptical of the Constitution. Following ratification, this conflict morphed as these two factions became the nation’s first political parties: the Federalists and the Democratic-Republicans. Also, the fight over ratification became a fight over how to interpret two simple clauses in the Constitution: the Commerce Clause and the Necessary and Proper Clause. Both clauses are found in Article 1 Section 8 of the Constitution, which lists the powers of Congress (the enumerated powers). The Commerce Clause states that Congress has the power to regulate interstate commerce while the Necessary and Proper Clause states that Congress has the power to enact all laws “necessary and proper” to assist Congress in carrying out its enumerated powers. A strict interpretation of these clauses would typically be a belief that the federal government may only do things that are specifically listed in the Constitution, while a broad interpretation holds that anything that is not explicitly prohibited by the Constitution is a valid power of the federal government. The conflict between a strict interpretation and a broad interpretation of the Constitution is the primary source of conflict throughout the history of American political thought and is best illustrated in the conflict over the creation of a national bank, the New Deal, and the Affordable Care Act.

The issue that ignited the entire conflict over constitutional interpretation occurred during the presidency of George Washington and concerned the constitutionality of the creation of a national bank. In the early days of the Washington Administration, Secretary of the Treasury Alexander Hamilton strongly pressured Congress to create a national bank to better manage the nation’s monetary policy. However, Hamilton’s proposal faced strong opposition from Secretary of State Thomas Jefferson, who did not believe that a national bank could be created under the Constitution. Eventually, two clear factions emerged: the Federalists supported Hamilton while the Democratic-Republicans supported Jefferson. The arguments used by the Federalists gave rise to the doctrine of broad interpretation. Hamilton argued that “a national bank was indeed necessary for the reasons laid out in the proposal before Congress. If it was necessary, it was proper under the Constitution” (Davies). The Democratic-Republican response likewise provided the argument for the strict interpretation of the Constitution; Jefferson argued that “a national bank may be convenient, but not truly necessary or indispensable for the execution of the government’s enumerated powers. Therefore, Hamilton’s bank was unconstitutional” (Davies).

After several heated debates and arguments, Hamilton eventually won over Washington and as a result the First Bank of the United States was created. Hamilton made his case in a “manifesto that articulated what would come to be known as the implied powers doctrine; that is, the government has the right to employ any means necessary to execute its express powers under the Constitution” (Davies). Hamilton’s victory in establishing the principle of broad interpretation in the creation of America’s first national bank was reinforced by two Supreme Court decisions that have forever changed the nature of constitutional interpretation. Both of these decisions were decided by Federalist Chief Justice, John Marshall. Marshall strongly believed in having a strong central government, and the decisions written during his tenure on the Court have greatly influenced American politics forever. The case of McCulloch v. Maryland was the first case that concerned the interpretation of the Necessary and Proper Clause. In this case, Maryland levied a tax on all banks in the state that were not chartered by Maryland (which only included the First Bank of the United States). The bank refused to pay the tax, citing the Supremacy Clause, which states that the laws of the federal government supersede state and local laws. In his majority opinion, however, Marshall articulated and upheld a broad interpretation of the Constitution; Marshall stated “let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional” (McCulloch v. Maryland).

Marshall also expanded federal power with the Commerce Clause in the case Gibbons v. Ogden. In this case, Ogden had been granted a legal monopoly on steamboat travel in New York and Gibbons had been granted a “coasting license” from the federal government. When Gibbons began operating in New York, Ogden sued. The Supreme Court, once again through John Marshall, not only used the Supremacy Clause to uphold Gibbons’ license, but Marshall also seized the opportunity to grant the federal government expanded powers under the Commerce Clause. Under this clause, Congress is granted the power to regulate interstate commerce. In the majority opinion, Marshall defines interstate commerce as “the commercial intercourse between nations, in all its branches” (Gibbons v. Ogden).

The question of constitutional interpretation next became quite important during the New Deal of Franklin D. Roosevelt. Throughout the Progressive era, many of the attempted economic reforms of the federal government were overturned by the Supreme Court. For example, child labor restrictions, and limitations on working hours were all deemed unreasonable expansions of government power and as a result declared unconstitutional, illustrating a conflict between politicians following the principle of broad interpretation and justices adhering to the principle of strict interpretation. This trend continued in to the twentieth century. In 1929, the American stock market crashed and the United States entered in to a devastating economic depression. The Great Depression lasted throughout the 1930’s and ending it was the prime objective of President Roosevelt’s domestic policy known as the New Deal. The New Deal involved massive government spending programs in an effort to alleviate the Depression. The size and scope of the programs was unprecedented.

However, in the mid-1930’s the Supreme Court under Chief Justice Charles Evans Hughes invalidated several key aspects of the New Deal in cases such as Schecter v. United States and United States v. Butler as the Court strictly interpreted the Necessary and Proper Clause and the Commerce Clause (Volpe). For example, in United States v. Butler, Justice Roberts refutes the argument that the general welfare provision of then power to tax bequeaths additional powers to the federal government; Roberts writes “the view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted” (United States v. Butler).

Given the fierce opposition to the New Deal from the Court and its strict interpretation of the Constitution, Roosevelt concocted a political plan which would allow him to continue the New Deal and end this judicial defiance and became known as his “court packing” plan. Under this plan, Roosevelt submitted to the Senate legislation which would allow the president to appoint one additional justice to the Supreme Court for every current member on the Court over the age of seventy who refused to retire (Volpe). Given the advanced age of the contemporary Court, many of the justices having also invalidated many of the attempted reforms of the Progressive era, it was incredibly obvious that Roosevelt wished to be able to counter strict interpreters with broad interpreters to uphold his legislative agenda.

Roosevelt’s approach alienated many of his former supporters, who viewed his court-packing scheme as nothing short of removing the safeguards of the separation of powers and as a result his plan failed. However, following the public disclosure of this plan, the Supreme Court began using a broad constitutional interpretation to uphold several aspects of the New Deal; also, one of the conservative justices announced that he was going to retire, giving Roosevelt the opportunity to appoint a sympathetic justice to the Court. As the New Deal has demonstrated, the different branches of government frequently are at odds with each other regarding how to interpret the Constitution, and by extension, how much power each branch believes the federal government actually has the right to exercise. In this case, a judicial branch adhering to strict interpretation attempted to prevent the extension of federal power by an executive branch and a legislative branch following broad interpretation, and eventually succumbed to the political pressure placed on it by the executive. This fight transformed the nature of the American presidency, as the Supreme Court had now, in effect, submitted to the will of the president.

This trend somewhat reversed in the second half of the twentieth century, as President Ronald Reagan implemented his philosophy of devolution, in which powers that had been taken from the states by the federal government would be returned to the states under the Tenth Amendment, thus reaffirming the American system of federalism, in which power is shared by a strong central government shares power with weaker, subunits of government. Furthermore, several important figures on the Supreme Court were appointed in the late 1900’s, thus setting the stage for the current position in the constitutional interpretation debate. For example, Justices Antonin Scalia and Clarence Thomas were appointed, and have been some of the most vocal advocates for strict interpretation of the Constitution. They continued the trend set by Justice Hugo Black, one of Roosevelt’s Supreme Court appointees who was one of the longest serving Supreme Court justices in history. As the Supreme Court slowly filled with justices advocating strict interpretation, it also lost several of its more staunch proponents of broad interpretation in favor of more moderate ones. Justices such as Harry Blackmun, William Brennan, and William O. Douglas frequently used broad interpretation rationale in their opinions, although none of them currently serve on the Court (Linder).

As the new millennium dawned and aged, a balance emerged between the two opposing viewpoints on the Constitution. Following the presidential election of 2008, Barack Obama was elected president with a Congress controlled by Democrats. Both parties advanced their legislative agenda by following the doctrine of broad interpretation. This culminated in the passage of the Patient Protection and Affordable Care Act in 2010, which began a process of controversial health care reform which included as one of its provisions an individual insurance mandate, which required every citizen to purchase health insurance or pay a fine (Mears and Cohen). This law was strongly opposed by those who followed the doctrine of strict interpretation, who believed the law presented an unprecedented expansion of Congressional power. In fact, Justice Anthony Kennedy stated the law would “change the relationship between the government and the individual in a profound way” (Mears and Cohen). The law’s supporters countered by saying that the law was reasonable under the Necessary and Proper Clause because it was a needed reform.

These arguments were brought before the Supreme Court when the constitutionality of the law was challenged, and the resulting opinion authored by Chief Justice John Roberts presented an interesting compromise in terms of constitutional interpretation. Roberts upheld the law, commonly known as “Obamacare”, but did so by referring to an unexpected power: the power to tax. Roberts stated that this law did not grant Congress any new powers, it was merely an exercise of the taxing power; he stated “the federal government does not have the power to order people to buy health insurance….The federal government does have the power to impose a tax on those without health insurance” (Mears and Cohen). This argument presents an interesting fusion of both strict and broad interpretation; it upheld an unprecedented law, but it was upheld using a legal philosophy commonly used by strict interpreters. However, this argument contains a contradiction, as President Obama stated multiple times that this law was not a tax (Mears and Cohen).

The interpretation of the Constitution has had a long and complex history with varying trends. Following the ratification of the Constitution, Alexander Hamilton advocated a broad interpretation of the Necessary and Proper Clause to defend the establishment of a national bank. Throughout the Progressive movement and the New Deal, the Supreme Court initially used a strict interpretation of the Commerce Clause to overturn many of the reforms of President Roosevelt before being threatened with a dilution of its power, after which the Court switched to a broad interpretation to uphold the New Deal. After a return to the strict interpretation of the Constitution by President Reagan, the American political system was characterized by a relative balance between a strict interpretation and a broad interpretation, with neither rationale being used to an extreme. This balance was best illustrated in the argument over the Affordable Care Act, in which John Roberts declared the individual mandate to be a tax on individuals who chose not to purchase health insurance, not forcing citizens to purchase a product and therefore an exercise of established Congressional power. With this recent mixing of the two philosophies, one may reasonably wonder how the future of American political thought will be affected by this ruling and if this represents a possible trend emerging in American politics.

Works Cited

Davies, Phil. “The Bank That Hamilton Built.” The Federal Reserve Bank of Minneapolis. Federal Reserve Bank of Minneapolis, 1 September 2007. Web. 12 April 2014.

Gibbons v. Ogden. 22 U.S. 1. U.S. Supreme Court. 1824. American Constitutional Law. 130-133. Print. 2012

Linder, Doug. “Theories of Constitutional Interpretation.” Exploring Constitutional Conflicts. Ed. Doug Linder. University of Missouri-Kansas City Law School, 2014. Web. 12 April 2014.

Mears, Bill and Tom Cohen. “Emotions High After Supreme Court Upholds Health Care Law.” CNN Politics. CNN, 28 June 2012. Web. 12 April 2014.

McCulloch v. Maryland. 17 U.S. 316. U.S. Supreme Court. 1819. American Constitutional Law. 121-125. Print. 2012.

Natelson, Robert G. “The Agency Law Origins of the Necessary and Proper Clause.” Case Western Reserve Law Review. 55. 244(2004):242-322. Web. 12 April 2014.

United States v. Butler. 297 U.S. 1. U.S. Supreme Court. 1936. American Constitutional Law. 158-162. Print. 2012.

Volpe, Paul. “Court Packing: Judicial Reorganization and the End of the New Deal.” The Real Deal. University of Virginia, March 2002. Web. 12 April 2014.