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02/03/2019

Jeremy Telman: Originalism and Second-Order Ipse Dixit Reasoning in Chisholm v. Georgia
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted Originalism and Second-Order Ipse Dixit Reasoning in Chisholm v. Georgia (Cleveland State Law Review, forthcoming; 56 pages) on SSRN.  Here is the abstract: 

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities. 

Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates second-order ipse dixit reasoning. The Justices issued their opinions seriatim, and they did not engage with one another’s reasoning. As a result, the Court issues a ruling, but there is no agreement as to the basis for that ruling. Rather, the Justices present us with five separate legal essays in which they ruminate on the nature of sovereignty and its relationship to the jurisdiction of the federal courts.

Scholarly engagement with the constitutional jurisprudence of the early Court has gained new urgency because originalist scholars recently have claimed that originalism informed the early Court’s approach to constitutional interpretation. This Article finds that contemporary filters do not capture the essence of eighteenth-century constitutional adjudication. Like modern textualists, the Justices of the Chisholm Court begin their inquiries with an examination of the constitutional text. However, the constitutional text rarely provided clear constraints on the early 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. They did so, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text. 

Along with Professor Telman's paper on the Marshall Court, this line of inquiry is opening an important new front in the attack on originalism.  To the extent that originalism claims at least some normative force from being a traditional or longstanding approach to the Constitution, it's obviously a bit problematic if early post-ratification courts did not consistently use a version of originalism.

But for a counterpoint, at Law and Liberty, Carson Holloway (Heritage): Marshall, the Dartmouth College Case, and Originalism. Central point:

Nevertheless, Marshall continued, those who sought the intentions of the Framers were not asking the most important question. The key consideration, he suggested, was the words of the Constitution itself, understood according to their ordinary meaning. While “a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some strong reason for excluding it can be given.” Put another way: “The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception.”

...

This is to say that, for Marshall and for the Court, the immediate intentions of the Framers of the Constitution mattered less than the original meaning of the words they chose to employ in writing the document’s particular provisions. And, Marshall added, those words clearly embraced and therefore protected Dartmouth’s charter of incorporation. For a lawyer, he suggested, it was so obvious as to “require no argument to prove” that a corporate charter is a kind of contract. Moreover, Marshall noted, in being guided by the original meaning of the words used in the Constitution, the Court was simply following “the ordinary rules of construction.”

The originalist inquiry, then, is not an invention of contemporary conservatives. Nor is it an invention of John Marshall or even of the Constitution’s authors. It is rather part of the traditional approach to legal interpretation that the Founding generation had learned from English authorities like William Blackstone.