Two questions for those who trumpet "original intent."
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  Two questions for those who trumpet "original intent."
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Author Topic: Two questions for those who trumpet "original intent."  (Read 1070 times)
bhouston79
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« on: March 28, 2009, 09:34:03 AM »

First, how do you derive an original intent from a document that was created through compromises among dozens of men with varying political leanings and belief systems?  Do we go with what Thomas Jefferson intended? Alexander Hamilton? James Madison?  There is no doubt that these men had their disagreements as to how the Constitution should be interpreted.

Second, do you disagree with the Supreme Court's ruling in McCulloch v. Maryland, where the U.S. Supreme Court in 1819 upheld the Constitutionality of a national bank despite the fact that establishing a national bank is not specifically listed among the powers delegated to Congress in Article I Section 8?  More specifically, do you disagree with the following language in that opinion, which was written by Chief Justice John Marshall: 
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  Doesn't that language sound like a ringing endorsement of a living constitution?
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A18
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« Reply #1 on: March 28, 2009, 12:31:02 PM »

The appropriate search is for the generally-accepted public meaning. This does not, and is not meant to, provide a single answer to any and every interpretive question. But it does rule out a vast number of interpretations.

The McCulloch passage you quote has nothing to do with a "living Constitution." It merely states that because the Constitution was meant to last for generations, the new government's powers had to be expansive enough to address the unforeseeable circumstances that future political actors would face. Any constitutional "adaption" was to be a purely legislative responsibility (i.e., Congress using its static powers to address dynamic situations).

Cf. Ogden v. Saunders, 25 U.S. 213, 332 (1827) (Marshall, C.J., dissenting):
##    Much, too, has been said concerning the principles of construction which ought to be applied to the constitution of the United States.
    On this subject, also, the Court has taken such frequent occasion to declare its opinion, as to make it unnecessary, at least, to enter again into an elaborate discussion of it. To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;—is to repeat what has been already said more at large, and is all that can be necessary.
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