Recently I’ve been asking myself this question: What do people mean when they refer to “the spirit of the Constitution?” It’s a phrase that was used by John Marshall in M’Culloch v. Maryland and which shows up in a lot of Supreme Court opinions. Originally it was probably a play on Montesquieu’s Spirit of the Laws, which was influential in the eighteenth century. But what does the phrase mean now?
My initial thought is that this is either purely rhetorical (“This violates the letter and the spirit of the Constitution”), a statement that something is unconstitutional even though there is no text or precedent that says so, or a statement that something is legal but should not be done. Take President Obama’s Executive Order on immigration. If I say that the order violates the spirit of the Constitution, am I saying that it is constitutional or is not? I need to look more carefully at how this phrase is typically used to develop a solid answer.