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Constitution is frequently referred to as “strict construction.” A strict constructionist, as the term is generally used, is a judge or justice who discerns the meaning of the Constitution in its text, structure, and history. Many nominees for judicial office will march under the banner of strict construction, since it suggests a modest, limited role for judges in a democratic society. Judges, advocates of strict construction say, should not import their own views of good and sound policy into the clauses and phrases of the supreme law of the land.
    Despite its popular appeal, strict construction has only episodically characterized the Supreme Court's work. The enduring approach toward constitutional interpretation was outlined by John Marshall in the landmark decision involving the Bank of the United States. The case was
McCulloch v. Maryland,
decided in 1819. Showing its hostility toward the national bank, Maryland imposed a tax on all banks or branches operating in the state that had not been chartered by the state legislature in Annapolis. The cashier of the Baltimore branch of the national bank, James McCulloch, issued notes on which no state tax had been paid, and the Maryland authorities filed an action in state court to collect the taxes due. The state courts ruled in favor of Maryland, and the case found its way to the Marshall Court.
    The Court, speaking through Marshall, invoked a provision in the Constitution that Maryland had largely ignored. The “Necessary and Proper” Clause—the final clause of Article I, section 8—provided that Congress was empowered “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” which were specifically listed. In broad language that has stood the test of time, Marshall wrote that the “Necessary and Proper” Clause gives great latitude to Congress in working its will. “Let the end be legitimate,” wrote Marshall, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” This was an open-ended approach that would allow Congress and the president to work their will on the nation. Hamilton's dream would live on.
    More important for the future, John Marshall's approach to interpreting the Constitution would stand as one of the great legacies of his tenure. The Constitution was to be interpreted broadly, not narrowly. In Marshall's approach, the Constitution was quite different from ordinary law. In criminal law, for example, one of the rules of interpretation is that criminal statutes should be construed narrowly. The “rule of lenity” puts a thumb on the scales in favor of individual liberty. An individual should not, under our system of law, be charged with a crime unless the nature of the criminal offense is clear to an ordinary person. Ambiguity or uncertainty in the criminal law is to be interpreted against the government and in favor of the individual. The opposite approach applies, however, when the Constitution, rather than a criminal statute, is being interpreted. As Chief Justice Marshall put it, “We must never forget that it is a Constitution that we are expounding.” The Constitution, in short, must be interpreted in a generous, reasonable manner, with the judge aware that the Constitution was intended to set forth a workable, practical structure of government. The frame of mind of the interpreting justice, in this view, is one of flexibility and practicality, with the operations of government clearly in mind.
    And it is the judiciary's interpretation that ultimately counts. As Marshall wrote in
Marbury v. Madison,
“It is emphatically the province of the judicial department to say what the law is.”
    These were Marshall's enduring legacies. National power—especially the power of Congress—would be interpreted