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Changing the Constitution
partake of the prolixity of a legal code, and could scarcely be embraced
by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be
marked, its important objects designated, and the minor ingredients
which compose those objects be deduced from the nature of the objects
themselves. . . . [I]t may with great reason be contended, that a government entrusted with such ample powers . . . must also be entrusted with
ample means for their execution. The power being given, it is in the interest of the nation to facilitate its execution.’’
Our Changing Constitution
The accumulation of customs and usages that impinge upon the Constitution, and the actions of Congress, the President, and the Supreme Court
that give meaning and substance to the powers that are granted and denied, form the basis of American constitutional law. In essence, such developments do not so much change the Constitution as they apply and
refine it. The line between actual change and mere implementation cannot
always be clearly drawn, of course, but we may take it as a general proposition that a grant of power carries with it, as Marshall contended, the
means for its execution. Thus in Gibbons v. Ogden (1824), the great steamboat monopoly case involving the scope of the commerce power, Marshall argued persuasively that, inasmuch as Congress was authorized to
regulate commerce, it followed that Congress must also be permitted to
control the means, or the environment in which commerce moved, including navigation, ‘‘so far as that navigation may be, in any manner,
connected with ‘commerce with foreign nations, or among the several
States, or with Indian tribes.’ ’’
More troublesome and difficult to justify, however, are actions of the
Federal and State governments that actually create power, alter the distribution or division of power, or otherwise redefine the general principles or specific provisions of the Constitution. Such changes, in the absence of an authorizing amendment to the Constitution, raise serious
questions of legitimacy because they change the ‘‘rules of the game’’ and
the basic structure of government. Because they also conflict with the
‘‘permanent will’’ of the American people, they play havoc with the un-