Stephen Breyer for the Defense
In a new book, the former Supreme Court justice and current Harvard Law School professor champions his pragmatic approach to statutory and constitutional interpretation against the forces of textualism and originalism
In 1819, United States Supreme Court Chief Justice John Marshall offered a framework for understanding the U.S. Constitution and its role in our nation. Decrying the “baneful influence of … narrow construction” in his landmark opinion in McCulloch v. Maryland, Marshall interpreted the Constitution’s “necessary and proper” clause to confer on Congress the power to adopt measures in pursuit of the general welfare (such as the creation of a national bank) even when the text of the document does not explicitly authorize such measures.
“Let the end be legitimate,” Marshall wrote for the majority, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”
Down to the present day, McCulloch is emblematic of a pragmatic approach to constitutional interpretation.
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