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Ed Meese vs. John Marshall. Original intent, or evolutionary view?

ATTORNEY General Edwin Meese III has sharply criticized the federal judiciary, particularly the United States Supreme Court, for departing from the ``original intent'' of the Founding Fathers. Furthermore, the attorney general questions whether the so-called ``doctrine of incorporation'' (which through the 14th Amendment applies the Bill of Rights to the states) is really in accord with the framers' wishes.

Justices William Brennan and John Paul Stevens have publicly taken sharp exception to these Meese views, terming them unfounded, simplistic, and anachronistic.

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The protagonists might have debated in government briefs or court opinions. Going public, however, considering the principles, is rather unprecedented. But as Chief Justice Warren Burger has acknowledged, the court, like all our institutions, is not immune from criticism. Constitutional debate has historical origins, and criticism of the judiciary isn't necessarily harmful and may be both warranted and helpful.

In analyzing the merits of this debate, one must confess to a sense of d'ej`a vu. The subject is hardly novel; rather, it has comparatively ancient roots.

With respect to the contention of the attorney general, that the Supreme Court should adhere to the ``original intent'' of the Founding Fathers and is overstepping its bounds in not doing so, Mr. Meese confronts a formidable adversary.

The attorney general runs afoul, in judicial constitutional interpretation, of the greatest of all chief justices of the Supreme Court, John Marshall.

The core of the constitutional philosophy of Chief Justice Marshall was expressed in McCulloch v. Maryland, decided in 1819. In an oft-repeated phrase, he described the Constitution as ``intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.'' Marshall added that to attempt to prescribe in detail in the Constitution the answers to unforeseen contingencies ``would have been to change, entirely, the character of the instrument and give it the properties of a legal code.'' This, he observed, would be most ``unwise.''

Chief Justice Marshall's constitutional philosophy has been described as the evolutionary concept of the nature of our Constitution. This philosophy has been pervasive throughout our legal history and has been accepted, with few exceptions, by the federal judiciary, present and past scholars, legal and lay.

A few pertinent quotations are illustrative: Chief Justice Harlan F. Stone, who was appointed to the court by President Coolidge, said in United States v. Classic (1941):

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In determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government.

And Justice Joseph McKenna, appointed by President McKinley, expressed the same view in Weems v. United States, decided in 1910:

Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ``designed to approach immortality as nearly as human institutions can approach it.'' The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.

The simple fact is that the Founding Fathers, endowed with an unparalleled genius for statecraft, wrote our fundamental law in 6,000 words, general in nature and replete with ambiguities, requiring judicial interpretation.

This the framers did to endow this greatest of political documents with an innate capacity for growth and adaptation to enable the Constitution to meet new needs and unforeseen contingencies.

The Constitution, as Justice McKenna and many other judges have pointed out, was, in Marshall's words, ``designed to approach immortality as nearly as human institutions can approach it.''

The grand design of the Constitution is frustrated by reading it literally as a code or statute.

The Constitution is a state document of inspiration. It is our legend and hope, the union of our minds and spirit.

It is our defense and our protector, our teacher and our lodestar in the quest for liberty and equality.

In a profound sense, simplistic invocation of the Founding Father's intention does injustice to their vision and grand design in framing our fundamental law.

On the ``original intent'' issue, it would appear that Mr. Meese, with all respect, is on a bad wicket.

The attorney general's other criticism of the court's constitutional philosophy, the so-called ``incorporation'' doctrine, is equally untenable.

All present members of the Burger court -- like the justices of the Warren court -- agree that the 14th Amendment makes the fundamental guarantees of the Bill of Rights (originally designed to protect only against abridgment by Congress) obligatory on the states.

This derives from the plain language of the amendment, which reflects the intention of its framers: ``. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.''

Surely, the basic safeguards of the Bill of Rights are fundamental liberties of Americans. Denial of any of them by states is plainly a denial of due process of law, prohibited by the 14th Amendment.

The attorney general is also on a bad wicket in arguing to the contrary.

Mr. Meese, however, is not engaging in an abstract, philosophical constitutional debate. He is insisting that it is time to rein in libertarian interpretations of the Constitution. Simply put, he wants ``conservative'' judges who share his views about abortion, school prayer, civil rights, and the like. He believes that federal judges have been ``too liberal'' or ``too activist,'' whatever these terms may mean.

Therefore, both President Reagan and the attorney general are seeking to appoint ``conservative'' judges, in the belief that they will practice ``judicial restraint'' and renounce ``activism.''

I do not share their viewpoint, but I do not find it surprising or unusual that a president and an attorney general should seek to appoint judges who are philosophically at one with them. This is common to almost every previous president.

But history teaches that Reagan and Meese are in for a surprise.

Arthur J. Goldberg is a former justice of the US Supreme Court.

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