Broad Construction

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BROAD CONSTRUCTION

Broad construction, sometimes called "loose construction," is an approach to constitutional interpretation emphasizing a permissive and flexible reading of the Constitution, and especially of the powers of the federal government. Like its opposite, strict construction, the phrase has political, rather than technical or legal, significance.

alexander hamilton advocated broad construction in his 1791 controversy with thomas jefferson over the constitutionality of the bill to establish the Bank of the United States. The essence of Hamilton's position, which was accepted by President george washington and endorsed by the Supreme Court in mcculloch v. maryland (1819), was the doctrine of implied powers : that the delegated powers implied the power to enact legislation useful in carrying out those powers. The broad constructionists also argued that the necessary and proper clause empowered Congress to make any law convenient for the execution of any delegated power. Similarly, broad construction justified enactment of the alien and sedition acts and expenditures for internal improvements.

In his Report on Manufactures (1792) Hamilton advocated a broad construction of the taxing and spending power that would authorize Congress to spend federal tax money for any purpose connected with the general welfare, whether or not the subject of the appropriation was within Congress's ordinary legislative power. Broad construction of the commerce clause and of the taxing and spending power now forms the constitutional basis for federal regulation of the lives and activities of citizens. Proponents of broad construction argue that the Constitution must be adapted to changing times and conditions. However, a thoroughgoing broad construction is clearly incompatible with the ideas of limited government and constitutionalism.

The Constitution both grants power to the government and imposes limitations on the exercise of governmental power. Consistent usage would describe the expansive reading of either, and not just of the former, as broad construction. Indeed, President richard m. nixon frequently criticized the warren court for its "broad construction" of constitutional provisions guaranteeing the procedural rights of criminal defendants. The more common usage, however, reserves the term for constitutional interpretation permitting a wider scope for governmental activity.

In the late 1970s and the 1980s, broad construction was largely displaced by a new theory of constitutional jurisprudence called "noninterpretivism." Unlike broad construction, which depends upon a relationship between government action and some particular clause of the Constitution, noninterpretivism justifies government action on the basis of values presumed to underlie the constitutional text and to be superior to the actual words in the document.

Dennis J. Mahoney
(1986)