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08/19/2013

Richard Reinsch on Gordon Lloyd on Madisonian and Marshallian Originalism
Michael Ramsey

At Liberty Law Blog, Richard Reinsch: Marshall v. Madison (commenting on Gordon Lloyd, Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835).  From the introduction:

... The paper is ambitious. It seeks to answer the question of “When reading the opinions of the Marshall Court, is one reading an exposition which takes its bearing from the American Founding or reading an interpretation which relies on a philosophy of jurisprudence that can be separated from the Founding?” Lloyd notes the majority view of scholars that separates Marshall from the Founding and, accordingly, invites “justices to be non-originalists.” A minority view from more conservative scholars argues if Marshall is understood as he understood himself, we find “a Marshallian originalism grounded in the principles of the Constitution.”

To that end, Lloyd provides a comprehensive account of the Marshall Court’s use of the Framers, and weighs the degree of its attachment to the concept of Madisonian Originalism. Lloyd, in this light, also reconsiders Marbury and challenges the minority view on Marshall noted above. In doing so, we now have 3 Marshall schools of interpretation after this paper. Lloyd’s account may be the new kid, but it packs a punch.