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Understanding the Constitution

November 19, 1985

To claim, as you do in your editorial (Oct. 16), "Justice, Brennan Style," that Justice William J. Brennan Jr. is a jurisprudential descendant of the great Chief Justice John Marshall is, in a word, wrong. Twice you quote Marshall's assertion in McCulloch vs. Maryland that "it is a Constitution we are expounding." This famous statement, however, does not mean what you imply that it does.

Justice Brennan, as you note, argues that the overarching principle of our Constitution is "human dignity"; his speech at Georgetown University makes repeated reference to the "constitutional vision of human dignity." This vision, we are told, has not yet been achieved, and indeed, in his own words, "if the interaction of this justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve." Thus, according to Justice Brennan, as the Supreme Court's notion of human dignity evolves, so, too, must the Constitution.

John Marshall's understanding of our Constitution was far different.

Marshall understood that the Constitution was "a superior, paramount law, unchangeable by ordinary means." This view, Marshall said, should be considered by the "court, as one of the fundamental principles of our society."

Marshall's writings are replete with similar statements, and they all convey an understanding of our Constitution, which is diametrically opposed to that of Brennan. Indeed, the premise of Marshall's justification of judicial review is wholly at odds with the idea that the meaning of our Constitution is linked to some ever-evolving vision of human dignity. The judiciary, deriving its powers from the Constitution, may declare void only those acts of the various legislatures that conflict with the Constitution. How, one might ask of Brennan, is this power legitimately wielded if the Constitution from which that derives is susceptible to constantly changing notions of human dignity?

This does not mean that Marshall's view of the Constitution has nothing to do with human dignity. Nothing could be further from the truth. For Marshall, as for the other Founding Fathers, human dignity meant individual liberty. Individual liberty, in turn, requires that the government be both representative of the people and limited in its power and scope.



McDowell is associate director of the Office of Public Affairs in the Justice Department.

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