The author says that Chief Justice Marshall believed in living constitutionalism because he said in McCulloch that the Constitution was "intended...to be adapted to the various crises of human affairs." This is a common misinterpretation. A thread! 1/7 newrepublic.com/article/161162…
First, context. Marshall is interpreting the necessary and proper clause: does it permit only means "absolutely" necessary, or merely convenient? Thus he says, famously, we must remember it is a constitution we are expounding. He meant that if the N&P clause were read narrowly 2/
the Framers would have had to provide so much more in the Constitution's text to make it work--and then it would have the "prolixity of a legal code," not a constitution. Hence the *best original meaning* of the N&P clause is that the means can be merely convenient. 3/7
The "intended to be adapted to the various crises of human affairs" language is similar; it explains why the *meaning* of the N&P clause is such that it permits convenient means to an enumerated power, not merely those that are absolutely necessary. 4/7
More still, the dictionary definition of "adapted" from that period and even today is different from how it's sometimes used colloquially. The Constitution itself isn't "adapted" by being changed. The Constitution itself is adapted at all times to the various crises. 5/7
That is, "adapted to" means "suitable to" or "fit for a purpose" (just look at the OED definitions); hence the Constitution's original meaning, particularly with its N&P clause, is what's "suitable" and "fit for" the various crises of human affairs. 6/7
In short, it seems to me, anyway, that Chief Justice Marshall did not say that the Constitution's meaning must change with time. Quite the opposite. The Constitution's original meaning is what's suitable to address changing human conditions and circumstances. 7/7.
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