Just a few hours ago, I took my Constitutional Law I exam. Having put that chapter of my life behind me, I thought it would be a good a time as ever, while the topic is still fresh in my mind to share what I've learned by offering up what I would ask any potential nominee if I were on the Senate Judiciary Committee.
My Question:
Mr./Mrs. ______, in McCullough v. Maryland Justice Marshall famously said that 'We must never forget it is a Constitution we are expounding'. What, if anything do those words mean to you?
Follow me below the jump for what the quote means to me, and why I would hope that any Supreme Court nominee would share those values.
First, if you've never read McCullough v. Maryland, and you have any interest at all in how the Constitution ought to be interpreted, I suggest you go read it asap. You can find it here.
Moving onto Marhall's famous quote:
We must never forget it is a Constitution we are expounding
To the non-lawyer, or even to the apathetic lawyer, these words border on ridiculous and somewhat obvious. Yet, I assert to you that not only are they profound in their meaning, but they continue to ring true and center around the pre-eminent legal debate of our time--namely how the constitution ought to be interpreted.
So what do these words really mean? Well their meaning is two-fold. I'll let Justice Marshall do most of the talking, and hopefully I can translate into plain English for everyone who isn't a fan of 19th century court opinions like I am.
Well, the meaning is actually quite simple. We must actually "expound" the Constitution when we are interpreting it!
In McCullough, the debate centered around whether Congress had authority under the commerce clause to incorporate a Bank of the United States. Justice Marhall...Take it Away:
Although, among the enumerated powers of government, we do not find the word 'bank' or 'incorporation,' we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies....it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution.
So although the Constitution says nothing about whether Congress can incorporate a Bank, that does not end the inquiry. (someone might want to give that memo to the conservatives on the court) At the heart of this assertion is that unlike a Code of Laws, the Constitution is not a detailed and exhaustive list meant to document all the things Congress is and is not to do under any and all circumstances. It could never be such a document because of the very nature of a Constitution--namely that it is intended to endure for all time.
Because the Constitution is intended to be eternal, to pass down through the ages, we cannot assume that the framers, in crafting the Constitution foresaw every issue that would ever come up, crafting a specific power to address that issue. No, in fact as Justice Marshall says:
It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
So just like we can't assume, just because the Constitution does not say "And Congress shall have the power to incorporate a Bank" that Congress does not have the power to incorporate a bank. We can also not assume, just because the Constitution is silent on a right to privacy, right to marry whom you choose etc. that this ends the inquiry. The framers, with all their wisdom, simply could not have forseen modern life. What we should take from the constitution is not what it literally meant to the framers then, but what guidelines the framers set up to help us resolve these issues.
In short, the Constitution is in fact a living breathing document, intended to lay the groundwork for government not only in the framer's era, but in all eras to come. It must be interpreted then, to meet the changing needs of society. To do otherwise is to deny it the essence of what makes a Constitution.
If we are going to set up a litmus test, for which we judge whether a Judge is qualified to serve, I think an effective answer to this question is a must. We simply can't afford another justice who forget's Marshall's simple, yet profound words:
We must never forget it is a Constitution we are expounding