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Powers of the Constitution

December 31, 1985

Edward Newton's splenetic letter (Dec. 14) against Gary L. McDowell's criticisms of Justice William J. Brennan Jr. cannot be allowed to stand uncontradicted. Newton is outraged because McDowell argues that the Constitution should be interpreted in a manner faithful to the aims and intentions of those who drafted it and incensed because McDowell uses Chief Justice John Marshall to criticize Brennan for rejecting that view and for interpreting the Constitution instead on the basis of his own idiosyncratic view of "human dignity."

Newton apparently believes that Brennan's view of "human dignity"--which differs from, say, Justice Sandra Day O'Connor's view, and which is likely to differ from the view of Brennan's successor--is a superior guide to constitutional interpretation than the "Jurisprudence of Original Intention," as Atty. Gen. Edwin Meese III has termed it. He is not content, however, to state his belief. As is common with far too many liberals who preach toleration, he invokes Hitler and Stalin intolerantly to condemn McDowell for holding and articulating a contrary point of view.

Newton's intolerance is as offensive as his understanding of Marshall is flawed. In his attempt to refute McDowell, he quotes Marshall's famous words from McCulloch vs. Maryland that the Constitution "is intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." He wonders how McDowell could overlook this passage, but the real wonder is how Newton could so completely misconstrue it.

Marshall in this passage was not defending the power of the court to adapt the Constitution, which is how Newton interprets it; rather, he was arguing that the powers of the Constitution should be understood as being broad enough to provide Congress with a latitude sufficient to confront various crises in the future. This, of course, was McDowell's point: Activist justices should not override the policy choices of Congress based on their idiosyncratic notions of what comports with "human dignity" but ought rather to review congressional enactments to determine whether they are consistent with the ends for which the framers created the Constitution and the ends they employed to achieve these ends.

By ignoring the adaptability that Marshall's (and McDowell's) interpretation gives to the Constitution, Newton ironically hamstrings the nation with a new strict construction that thrusts the policy preferences of the court on the public in the name of constitutional rights. Once these "rights" are implemented as constitutional law, there can be no policy alternatives. The results are clear to see: The policy options of the nation are reduced, and the Constitution becomes trivialized.

At bottom, Newton objects to interpreting the Constitution on the basis of original intent because he objects to what the Constitution intends. The Constitution's values are not his values, but he lacks the termerity to say so. Therefore he argues that the Constitution should mean whatever his favorite justices want it to mean.

Stripped of its fustian excess, Newton's quarrel is not with McDowell but rather with James Madison, who declared: "If the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable (government), more than for a faithful exercise of its powers."

RALPH A. ROSSUM

Claremont

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