Understanding Judicial Philosophy of Marshall

I would be angered by Gary McDowell’s letter to the editor (Nov. 19) regarding Justice William J. Brennan Jr. of the U.S. Supreme Court and the judicial philosophy of Chief Justice John Marshall if it did not so neatly demonstrate the seeming ignorance of history, the apparent inability to read simple English, and the ethical insensitivity that characterize far too many Reagan Administration officials.

McDowell asserts that Brennan’s (and The Times’) understanding of Marshall’s philosophy is flawed. He supports his argument by quoting Marshall out of context. His reference to Marshall’s comment about the Constitution being “a superior, paramount law, unchangeable by ordinary means” leaves out much. What Marshall wrote was: “The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.” The emphasis is clearly on the ability of Congress to alter the Constitution by ordinary means (lawmaking) rather than by the more difficult and formal means of amending the document. That phrase, to my knowledge, has not been used, certainly not by Marshall, as support for the contention that the Constitution is etched in stone or that an interpretation, once adopted, is beyond reach.

Indeed, if McDowell had bothered to examine Marshall’s opinions further, he might have encountered the following in McCulloch vs. Maryland:

“This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.”

How is McDowell able to overlook so important a statement? Perhaps the answer lies in the fact that he is reportedly the book review editor for Benchmark magazine, a legal journal published by the right-wing Center for Judicial Studies headed by former aide to Sen. Jesse Helms (R-N.C.), James McClellan. Such groups have displayed an amazing knack for rewriting history to serve their needs. They are the most recent exemplars of the totalitarian mentality which, from Hitler’s Berlin to Stalin’s Moscow, has sought to support questionable policies by reliance on manufactured history.

McDowell, who is associate director of the Office of Public Affairs in the Justice Department, disgraces the office he holds and the department he serves. He is an embarrassment to the American people who employ him, to say nothing of the teachers whose efforts to enlighten him were obviously in vain. How typical of an Administration that ignores reality when it fails to conform to its ideological convictions.

EDWARD M. NEWTON

San Diego