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Distributed October 13, 2004
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About 1,150 Words

Robert Scholes
Strict and loose construction: A decent respect to the opinions of mankind

The Declaration of Independence was in part an outreach to nations of the world – an international explanation of actions the Americans were about to undertake. What might a strict constructionist reading of our nation’s earliest document tell us about political life in the 21st century?

A decent respect to the opinions of mankind ...

That is a phrase which should be familiar. It comes from the first sentence of our Declaration of Independence, and it explains the very existence of that document, which was a letter to the nations we hoped to join as a sovereign state. We were seeking a kind of global approval for our action, and we went to great trouble in that document to justify our rebellion against Great Britain and its king, who was still, nominally, our king as well. At present, of course, we find one presidential candidate mocking another for having “a decent respect to the opinions of mankind,” which says something about how far we have come from that founding document – especially since the mocker professes to believe in a “strict construction” of this country’s foundational texts.

As a lifelong student of language and literature, I take a special interest in matters like this, especially those that involve interpretation of important texts. With that in mind I would like to look a little more carefully at some of the language in that foundational text and at the very idea of “strict construction” itself. Looking at those words from the Declaration, I notice that we wouldn’t say it quite that way anymore. We would say “a respect for the opinions of mankind” not “to the opinions of mankind.” This little shift reminds us that language itself changes, which is one of the things that make strict construction difficult.

And, of course, culture itself changes, raising other problems for strict construction. In the next sentence of that document we come upon the phrase “all men are created equal” – which raises a number of interpretive questions. Does “all men” really mean all men and women, or just all males? And does it really mean all males or just all white males? What does strict construction have to say about these matters? This question is not easy to answer because it is not easy to say just what “strict construction” itself means. What is the strict construction of “strict construction”? One answer I have seen is that, under strict construction, a text means what it says. And how do we know what it’s saying? It says what it means.

Would that it were so. But language does not work that way. Words neither speak nor mean. People speak and mean, using words or other signs. Words, of course, come with certain potential meanings attached to them, but it is only through utterance in a context that these meanings are activated. That is why a word, in an ironic context, can mean the opposite of what it says. Last week, when George W. Bush was asked what kind of judge he would appoint to the Supreme Court, he first suggested that he would appoint one who would vote for him. This was a joke, of course, but there is many a true word spoken in jest. He also said he would appoint one who would believed in the “strict construction” of the Constitution. In such circumstances, it is tempting to think that what he means by “strict construction” is someone who would vote for him.

But the issue is too serious for any of us to be joking about it. So what can “strict construction” really mean? That, perhaps, is the wrong question, since even that phrase means different things to different people. I think it is a coded expression for “conservative” when used by President Bush, a way of indicating a political position while pretending that judges should be above politics. Neither candidate seemed ready to admit that judicial appointments are important because they are in fact political. So they both fudged. But strict construction is itself a fudgy notion.

We know, more or less, what “strict” means in this context: something like careful, rigid, looking for original intent. But what does “construction” mean? It suggests that something new is being made. “Strict” seems to point back to an origin, but “construction” seems to point forward to a result. Interpretation means something similar to construction, but there is a difference. You and I may interpret the law, but we don't make it. The interpretations of judges do not make new laws either, but they do determine how old laws apply to new situations – they create, in effect, the law of the land. So construction, in this sense, means making something new out of something old, new law out of old law. Which means that strict construction must mean creating new laws that are as close as possible to the old ones.

But why should we need new laws at all? Why not just keep the old ones? What does “old” mean, anyway? In the case of law, I think “old” means that it doesn’t deal with new situations, and therefore must be changed. If we can’t fit the new situations into the old laws, then we must find a way to make laws deal with the new situations. When it comes to interpretation, I like mine as strict as possible. But construction is another matter. When we are talking about laws, it seems to me that what we should want is the best fit between the old and the new, rather than the approximation that comes closest to the old.

Getting back to the Declaration of Independence, I think we had better interpret “all men” as referring to all human beings, even though we know that Thomas Jefferson, who drafted most of that document, did not believe that African-Americans were the equals of European-Americans. We know that because he said so in other documents. If we had really strict construction of the Constitution, women would not be voting in this country today. So, how should we interpret that telling phrase, “a decent respect to the opinions of mankind?” What is a “decent respect?” Our dictionaries will offer a range of meanings for this word, ranging from “chaste” to “worthy,” and a deeper dig will tell us that it comes from a Greek word that had to do with the appearance of goodness, with seeming good.

Were Jefferson and his colleagues trying to seem good or to be found worthy of respect by offering respect to others? We were small and weak, and might not have made a success of our revolution without the help of others – especially the French. Now we are big and strong. Strict construction would suggest that we should still have “a decent respect to the opinions of mankind.” But a looser construction would say that being big and strong changes everything. We can start over by saying it’s up to them to respect us – and, if they don’t, so much the worse for them. Strict and loose constructions are not themselves political positions. Rather, they serve political ends, and those are what we must keep in mind.

Robert Scholes is a research professor of modern culture and media at Brown University and is currently president of the Modern Language Association of America.

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