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".