Our Changing Constitution
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Doctrine of Incorporation represents a drastic transformation of power
that serves to illustrate one of the ways in which the Constitution is
changed without a clear mandate from the people and the States through
the amendment process.
In his Commentaries on the Constitution, Joseph Story condemned judgemade law and cautioned against the use of interpretive techniques that
change the meaning of the Constitution. The two greatest excesses of constitutional construction to be avoided, he advised, are excessively narrow
and excessively broad interpretations, either of which can distort the intent of the Framers and rob the people of their Constitution. Taken to extremes, restrictions on the powers of government can make it difficult or
impossible for government to function. Moreover, a power of government should not be restricted solely because it is susceptible of abuse.
‘‘Every power,’’ he observed, ‘‘however limited, as well as broad, is in its
own nature susceptible of abuse. No Constitution can provide safeguards
against it. Confidence must be reposed somewhere, and in free governments the ordinary securities against abuse are found in the respo