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Introduction The phrase strict construction has been defined as the “narrow construction of a statute, confining its operation to matters . . . specifically pointed out by its terms, and to cases which fell fairly within its letter.” 1 In the context of the Constitution, strict construction provides that the powers of the federal government listed in Article I should be “narrowly construed.” 2 The vagueness of the charter’s terms made a narrow reading of them difficult. 3 What was included in the power to regulate commerce among the states? What was not? Strict constructionists, eager to ensure that federal authority remain within the lines marked out when the states approved the Constitution (1787–88), turned to the ratification debates. They insisted that the understanding of the Constitution possessed by those who wrote and ratified it should control its interpretation. The 1833 Report on Nullification for the Joint Committee of the New York legislature embraced strict construction. It explained that an “inflexible observance of [the Constitution’s] specifications and restrictions, by which it was defined . . . by the Convention, and as understood by the people in the adoption of [it], are . . . indispensably necessary to its preservation.” 4 Thus strict construction, although a textual method of interpretation in theory, constituted more of a hybrid approach in practice . Its practitioners cited discussions of constitutional clauses that occurred during ratification in support of their own narrow constructions of those clauses. Americans embraced strict construction in order to ensure that Con-  1. Ballentine’s Law Dictionary, ed. William S. Anderson, 3d ed. (Rochester, N.Y.: Lawyer’s Cooperative Publishing Company, 1969), 1223. 2. Encyclopedia of the American Constitution, ed. Leonard W. Levy, 4 vols. (New York: Macmillan , 1986), 4:1787–88. See, for example, Jefferson’s argument denying the constitutionality of the United States Bank in Writings of Thomas Jefferson, ed. Paul Leicester Ford, 10 vols. (New York: G. P. Putnam’s Sons, 1892–1899) (hereafter Writings of Jefferson), 5:285–89. 3. As Leonard Levy wrote, “ambiguity cannot be strictly construed.” Levy, Original Intent and the Framers Constitution: The Debate over Original Intent (New York: Macmillan, 1988), 342. 4. Report of the Legislature of New York (February 23, 1833), in State Papers on Nullification (Boston, 1834; reprint, New York: Da Capo Press, 1970), 136. gress would exercise only those powers that had been granted to it with the ratification of the Constitution—the remaining prerogatives of government were to remain with the states. 5 As St. George Tucker explained in 1804, since each state possesses unlimited sovereign power, “every grant of jurisdiction to the confederacy . . . is to be considered as special, inasmuch as it derogates from the antecedent rights and jurisdiction of the state making the concession, and therefore ought to be strictly construed.” 6 In 1854 Senator Isaac Toucey of Connecticut declared that “the role of strict construction is founded upon an essential element of public liberty—the right of each state to govern itself, and to regulate its own internal affairs, without the external control of thirty other states.” The alternative would be “mere tyranny without responsibility.” Thus the admonition: “the alienation of the power of a state to govern itself must be clearly shown, or the power is not granted.” 7 Strict construction is associated with Jeffersonian Republicans and antebellum Democrats, who embraced it during the nineteenth century in order to keep power from accumulating in the hands of the federal government . 8 Under the standard view of American history, they were successful —the federal government remained a feckless creature without influence during the period before 1861. 9 It is the purpose of this book to demonstrate that this view is incorrect. Rather than lacking in power, the federal government quickly acquired a great deal of it, contributing to the sectional crisis that led to secession and the Civil War. Centralization continued in the years following that conflagration. Even as public authority has continued to accumulate in Washington, strict construction has survived as a method of constitutional interpretation, albeit un-   introduction 5. Ibid. See also Blackstone’s Commentaries, ed. St. George Tucker, (Union, N.J.: Lawbook Exchange Union, 1996), 1:98, Appendix, note D (“View of the Constitution of the United States,” 1803): “The Constitution itself suggests that it should be strictly and not liberally construed . The Tenth Amendment provides that ‘the powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’” See also 150–55. 6. Tucker, Blackstone...

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