Bench Memos

The Age of Strict Construction

The meaning of the Constitution and its proper mode of interpretation when it comes to Executive power are white hot topics these days.  These matters have been simmering since the theory of the “unitary executive” emerged in the thinking and practice of the Reagan Administration.  Before that, however, not so much; other than occasional crises and Big Questions — such as Truman’s seizure of the steel mills — Article II seems to have led an uneventful life as the quiet part of the Constitution.

Not quite.  It is one of the many virtues of Peter Zavodnyik’s excellent new book to take a fresh, and insightful, look at what we tend to regard as the Executive’s quietest years, those from the Founding until the Civil War.  Zavodnyik shows in The Age of Strict Construction that federal power grew steadily and greatly throughout the antebellum era.  He shows, too, that this accretion did not go unchallenged; in fact, Zavodnyik shows convincingly that the argument was carried on largely in constitutional terms and that the classic contending positions track closely what we would recognize to be “textualism” and “originalism”.  He also argues provocatively how this dispute fed into the secession crisis, and thus the War itself.  

Here is one more very interesting thing about the book: its author.  Peter Zavodnyik is a lawyer who holds down a busy practice in Chicago.  Strict Construction proves that you don’t have to be a law professor to write a fine academic book.  Practicing attorneys may rejoice in the news.  Members of the law professors guild (such as myself) should too.  I think.

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