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The Limits of Originalism and Strict Constructionism as Methods
of Constitutional Interpretation
In recent years, there has been much discussion revolving around originalism, strict
constructionism and judicial activism as they relate to constitutional interpretation and the
appointment of judges to the U.S. Supreme Court. Although often used interchangeably by
politicians, strict constructionism and originalism are not synonymous.
Strict constructionism is the judicial philosophy holding that the Constitution should be
interpreted according to its literal terms without looking to other sources.
Originalism on the other hand attempts to place the Constitution in a historical context in an
attempt to ascertain the original intent of the drafters.
As with all judicial philosophies, strict constructionism and originalism are useful methods or
tools used in constitutional interpretation but they are not without limits.
While the literal text is a useful starting point for constitutional interpretation, strict
constructionism when taken to its logical extreme can produce absurd results. A true strict
constructionist would argue that the Supreme Court cannot declare any acts of the legislature
(state or federal) unconstitutional since no such power is expressly delineated in the
Constitution. However, as Chief Justice John Marshall recognized in Marbury v Madison,
[cite?] this power must exist otherwise the Constitution would be rendered a nullity. This
power naturally flows from the nature of the Constitution as the supreme law of the land.
Similarly, true strict constructionists believe that because a right to privacy is not specified
within the U.S. Constitution no such right is protected. What this fails to consider is that all of
our fundamental rights are based on a right to privacy. Without a right to privacy, there would
be no right to be free from governmental searches of our “persons, papers and effects.” U. S.
Constitution, 4th Amendment. Without a right to privacy there would be no right to the free
exercise of religion, since such exercise is inherently a private right. Without the right to privacy
there would be no individual right to keep and bear arms (as the Supreme Court recently held
exists in District of Columbia v Heller, 554 US _____ (___); 128 S Ct 2783, 171 L Ed 2d 637
(2008).
Like strict constructionism, originalism also has its limits. Surely forms of punishment that
were prevalent during the times of the founding would be considered “cruel and unusual” today.
If the history of the founding reveals one thing it is that the overriding intent of the Constitution
Page 1 of 2
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Copyright © 2010 Willingham and Coté, P.C. All Rights Reserved. No copying or distributing of this
article in any medium without written permission. For reprints or permission to copy, please contact David
M. Nelson at (517)351-6200.
This article is intended to provide general information and does not constitute legal advice. Readers should not use
this information as the basis for action without consulting informed legal counsel regarding their specific situation.
was to establish a system of government that would subsist for future generations. What is also
clear is that the Constitution was a compromise on a large scale. Even the Bill of Rights was a
compromise. The Federalists (supporters of the Constitution) believed that to include such a
declaration would be superfluous and dangerous, while the Anti-Federalists (those opposed to
the Constitution) believed that it was the only way to ensure that the government would not
infringe on private liberties.
What is clear is that the framers recognized that the Constitution that had been drafted was not
perfect and could only be expounded by future generations.
Alexander Hamilton stated in Federalist No. 34:
“Constitutions of civil Government are not to be framed upon a
calculation of existing exigencies; but upon a combination of
these, with the probable exigencies of ages, according to the
natural and tried course of human affairs. Nothing therefore can
be more fallacious, than to infer the extent of any power, to be
lodged in the National Government from an estimate of its
immediate necessities. There ought to be a CAPACITY to provide
for future contingencies, as they may happen; and as these are
illimitable in their nature it is impossible safely to limit that
capacity.”
James Madison stated in Federalist No. 37:
“All new laws, though penned with the greatest technical skill, and
passed on the fullest and most mature deliberation, are considered
as more or less obscure and equivocal, until their meaning be
liquidated and ascertained by a series of particular discussions and
adjudications.”
These passages illustrate the fact, known to the framers, that their Constitution was defective to
the extent that it was created by mortals who could not envision the problems or legal issues
that this country would face throughout its long and arduous history. While this article was not
meant to criticize strict constructionism or originalism as a starting point for constitutional
interpretation, it was meant to criticize the view held by some that strict constructionism and
originalism is a more objective method of interpretation. The mere fact that a judge uses strict
constructionism or originalism to achieve her social or political agenda does not make her less of
an activist.
David Nelson is an attorney in the litigation department of Willingham & Coté, P.C., and
practices in the areas of medical malpractice defense, no-fault insurance defense and ERIS
defense. He can be reached at (517) 351-6200 or [email protected].
Page 2 of 2
www.willinghamcote.com
Copyright © 2010 Willingham and Coté, P.C. All Rights Reserved. No copying or distributing of this
article in any medium without written permission. For reprints or permission to copy, please contact David
M. Nelson at (517)351-6200.
This article is intended to provide general information and does not constitute legal advice. Readers should not use
this information as the basis for action without consulting informed legal counsel regarding their specific situation.