Document Type

Article

Publication Date

1981

Abstract

"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a moral code. The conclusion that there are limits to the meaning that may be given the Constitution is not likely to arouse controversy. Yet, that conclusion masks an important ambiguity concerning the source and permanence of those limits. The boundaries of permissible constitutional interpretation, it might be argued, are set by the intentions of those who drafted and ratified the original document and the several amendments to it. Accommodation to change through interpretation is not wholly foreclosed on this view, for the Constitution often speaks in generalities, but (proponents of this view maintain) present judgment is securely bounded by the intentions of "the framers." The opposing view is less easily stated. At the risk of initial oversimplification, the boundaries of permissible constitutional interpretation are, on that view, subject to continuous adjustment. The meaning of the Constitution is never fixed; rather, it changes over time to accommodate altered circumstances and evolving values. Only the former view, it seems apparent, is compatible with the recurrent claim that the Constitution itself stipulates the values that must be employed in making decisions. The latter view recognizes limits to the interpretation that may properly be placed upon the Constitution,4 but it does not treat those limits as embedded in the Constitution. It regards constitutional law not as an expression of values written into the Constitution by the framers, but as the product of a continuing process of valuation carried on by those to whom the task of constitutional interpretation has been entrusted.