There seem to be a whole lot of people these days who are expert on the U.S. Constitution, and who know beyond question what it says and means. After all the words and there, and they are the set forth in pretty clear language. Further, many of these “experts” are quick to cite the underlying wisdom of the “Founders” – the folks who fought the Revolution and who gathered in Philadelphia in 1787 to write our Constitution – as unimpeachable authority in support of constitutional interpretation. The “clear meaning,” they say, of this most basic document defining the nature of our government and the right of individual citizens should be obvious to any who read it. It follows that the constitutional language – equally clearly, according to the declarer – supports the views of the declarer.
Of course this often takes quite a bit of work and not a little imagination; a lot of things get in the way: two hundred years of judicial interpretation; decades long efforts of the Supreme Court and lower courts to measure new issues and realities against constitutional language and intent; and the natural – one could say almost inevitable – tendency of human beings to disagree on many things and channel disagreement into political or legal action. Courts work continuously to resolve the large issues of the day, although some basic, fundamental issues defy easy solution. Nevertheless, despite the difficulties court render decisions, politicians do their thing, and citizens respond with acquiescence, efforts to seek further clarification, or just plain commitment to continue their fight.
So, why am I writing this? I want to return to the individuals who find easy resolution of difficult problems in the literal language of the Constitution and wisdom of he “founders” who wrote it. Narrow interpretation seems to be the mantra of most of them. The oft-cited words of Chief Justice John Marshall writing 1819 are not for them. Marshall, addressing the need for expansive interpretation of important language in the Constitution: [the provision under consideration] “is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs”.
No doubt you have discerned where I stand: with Justice Marshall. Recently I have come across interesting material from minutes and notes of the Constitutional Convention in the summer of 1787 – wisdom of the “founders” – shedding significant light on the actual drafting of the constitutional language to be approved by delegates. The Convention’s Committee of Detail was charged to put down a draft text capturing agreements of the convention up to the last days of July. The convention then adjourned to August 6th to await the Committee’s report.
The Committee of Detail had two expressed fundamental rules governing its approach and the corresponding work of its subcommittee (or joint committee), the Committee of Style:
In the draught of fundamental constitution, two things deserve attention:
- To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and
- To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution necessarily differs from the law).
Good language, I submit; language supporting Justice Marshall’s 1819 interpretation of its language. Is the Constitution to be narrowly interpreted, seemingly impotent to resolving many controversies brought on by a multi-cultural, industrialized society in the Information Age, or is it to be viewed and interpreted in light of the adaptive nature and chosen form of Founders?
For seeing an adaptive Constitution and laws and interpretation operating in the area of environmental jurisprudence. I commend the observations and case histories set forth in my recent book, Voices for the Earth.
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