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09/03/2018

Jeremy Telman: John Marshall's Constitution
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted John Marshall's Constitution: Distinguishing  Originalism from Ipse Dixit in Constitutional Adjudication on SSRN.  Here is the abstract: 

This Article is the first comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835) from the perspective of originalism. Until recently, there seemed to be no need for such a study. Early originalists, who wrote in the late 1960s and early 1970s, assumed that constitutional adjudication had been originalist until at least the Lochner Era. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reaction against the perceived excesses of the Warren and Burger Courts. Originalists no longer claimed that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have revived earlier claims that constitutional adjudication in the United States has always been originalist. This Article maintains that such claims are doubly misleading. First, the Marshall Court invoked the Framers’ intentions but never undertook any investigation into those intentions. Second, this rhetorical intentionalism by no means predominated as the Marshall Court’s governing interpretive approach. Rather, that approach was eclectic. Historical reasoning, common law precedent, and ipse dixit pronouncements predominated in the constitutional adjudication of the Marshall Court and throughout the Early Republic. 

Both contemporary originalism and contemporary non-originalism have much in common with the interpretive approach of the Marshall Court. All begin their inquiries with an examination of the constitutional text. However, the two core dogmas of contemporary originalism, which Larry Solum has described as 1) the fixation thesis and 2) the constraint principle, were rarely relevant to the Marshall Court’s inquiries. The constitutional text rarely provided clear constraints on the Court’s discretion because, to borrow language from New Originalists, their cases arose in the “zone of construction” where original meaning “runs out.” Justices chose among plausible arguments about the Constitution’s meaning. At key points, the Justices simply declared what the law was, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text.