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Our Favorite New Words How many do you know? Those who drafted our Constitution understood the difference. One cannot read the text without admitting that it embodies substantive value choices; it places certain values beyond the power of any legislature. Obvious are the separation of powers; the privilege of the Writ of Habeas Corpus; prohibition of Bills of Attainder and ex post facto laws; prohibition of cruel and unusual punishments; the requirement of just compensation for official taking of property; the prohibition of laws tending to establish religion or enjoining the free exercise of religion; and, since the Civil War, the banishment of slavery and official race discrimination.
With respect to at least such principles, we simply have not constituted ourselves as strict utilitarians. While the Constitution may be amended, such amendments require an immense effort by the People as a whole.
To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of these substantive value choices, and must accept the ambiguity inherent in the effort to apply them to modern circumstances.
The Framers discerned fundamental principles through struggles against particular malefactions of the Crown; the struggle shapes the particular contours of the articulated principles. But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours. Successive generations of Americans have continued to respect these fundamental choices and adopt them as their own guide to evaluating quite different historical practices.
Each generation has the choice to overrule or add to the fundamental principles enunciated by the Framers; the Constitution can be amended or it can be ignored. Yet with respect to its fundamental principles, the text has suffered neither fate. Thus, if I may borrow the words of an esteemed predecessor, Justice Robert Jackson, the burden of judicial interpretation is to translate "the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century.
Barnette, [ U. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.
What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. Ballotpedia features , encyclopedic articles written and curated by our professional staff of editors, writers, and researchers.
Individual privacy has also been compromised. In an effort to track down suspected criminals and terrorists, the Patriot Act allowed the government to invade the privacy of individuals at new levels.
Specifically, sneak-and-peek warrants, roving wiretaps, and trap and trace searches were all fair game under the newly expanded interpretation of the Fourth Amendment. The government has been forced to shoulder the burdens of a dangerous world, leading to increasingly common infringements on the Bill of Rights.
Many Americans are outraged when they hear about mistreatments of individual liberties, but generally, the government does so to protect the security of the public. No longer can people like Neil Gorsuch proclaim that we must interpret the Constitution literally.
Overstepping the bounds set by the Founders is a necessary sacrifice; only then will the security of the United States be maintained. The first great political controversy over the meaning of the Constitution took place early in , while Congress was debating a proposal to issue a charter of incorporation to the Bank of the United States. That proposal was the work of Secretary of the Treasury Alexander Hamilton. The legislative powers of Congress enumerated in Article I, Section 8 of the Constitution did not include the substantive authority to issue charters of incorporation.
Madison well remembered—because he had proposed it—that the Federal Convention of had discussed vesting that power in Congress. The Convention rejected that motion, and Madison and Jefferson could thus believe that the power to grant charters of incorporation did not belong to Congress. In the eighteenth century, that power was still regarded as a substantial legal privilege rather than a routine or convenient way to charter ordinary businesses. Its exclusion from Article I, Section 8 was thus significant.
Hamilton viewed this power very differently. A national bank could issue bank notes that would enhance the money supply. The bank would also enhance the public credit of the United States. And securing that public credit had been, Hamilton firmly believed, one key objective of constitutional reform.
Hamilton had been studying questions of public finance since at least He clearly grasped one critical point: If the national government was to be competent to discharge its great responsibilities for defense and security, the Constitution had to be read liberally, not narrowly.
For Hamilton, then, necessary and proper really meant something like useful and convenient. Jefferson favored a much narrower reading. But so confined a reading would strip the government of the capacity to adjust its policy to changing circumstances.
That government was well enough balanced with its bicameral Congress and three independent departments. The likelihood of power being abused under these conditions was low. But the need to make government effective, to enable it to secure its expected promise, still had to be determined. That required a liberal reading of the Constitution.
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