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10/27/2019

Jeremy Telman: John Marshall's Constitution
Michael Ramsey

D. A. Jeremy Telman (Valparaiso University Law School) has posted John Marshall's Constitution: Methodological Pluralism and Second-Order Ipse Dixit in Constitutional Adjudication (Lewis & Clark Law Review, forthcoming) (98 pages) on SSRN. Here is the abstract:

This Article provides a comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835), addressing its relationship to contemporary originalism. Until recently, there seemed to be no need for such a study. 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 did not claim that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have made 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 pluralist. Historical reasoning, common law precedent, and what I call second-order ipse dixit pronouncements featured prominently in the constitutional adjudication of the Marshall Court.

The constitutional text rarely provided clear constraints on the Marshall 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.

Professor Telman presented this paper at the annual originalism works-in-progress conference in San Diego in February 2019.  Mike Rappaport commented here: Chief Justice Marshall’s Textualist Originalism.