John Marshall's Constitution

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42938-lcb_24-4 Sheet No. 13 Side A 02/02/2021 10:18:46 ipse dixit dixit ipse IN tutional jurispru- tutional IPSE DIXIT tment of the consti by 1151 1151 D.A. Jeremy Telman* des a comprehensive trea CONSTITUTIONAL ADJUDICATION ADJUDICATION CONSTITUTIONAL

S E PLURALISM AND SECOND-ORDER SECOND-ORDER AND PLURALISM L C I This Articleprovi dence of the Marshall Court (1801–1835), addressing its relationship to con- to relationship its addressing (1801–1835), Court Marshall the of dence a need such for be no tooriginalism.Until seemed temporary there recently, in the 1980s, from intentionalism the move textualism to study. With a reac- and innovation an their movement as understand came to originalists tionBurger against the Courts. perceived of Original- Warren and the excesses ists did not originalist claim methodology that informed nineteenth-century adjudication. constitutional

JOHN MARSHALL’S CONSTITUTION: METHODOLOGICAL METHODOLOGICAL CONSTITUTION: JOHN MARSHALL’S Associate Professor of Law, OklahomaCity University School of Law; Dean’s Visiting T

R M K late but vital for which intervention I am grateful,even though I did not have the opportunity to her for Koelemeyer Karen to Thanks the Article. into suggestions his of all incorporate extraordinary editorial efforts. Scholar, Georgetown Law University Center. Thanks to Porsha Winters and Debra Denslawfor research assistance. For local interventions and encouragement, I thank Cynthia Rutz and the Valparaiso University Writing Circle. Jack Balkin helped refine my me theory of provided and in conversation my ideas me develop helped Segall Eric and Mikhail John reasoning. much-needed encouragement. I am grateful to theUniversity ofSan Diego’s TenthAnnual this Article. At the draft of a I presented which at Works Conference, in Progress Originalism conference, I received useful comments from Ian Bartrum, Will Baude, Jud Campbell, Thomas AA Telman_EIC_Proof_Complete(Do Not Delete) 1/13/2021 3:30 PM

Colby, Jonathan Gienapp, Christopher Green, Michael McConnell, John Mikhail, Michael Paulsen, Richard Primus, Michael Ramsey, Michael Rappaport, Stephen E. Sachs,Schauer, Fred a made Schwartz David Upham. David and Treanor, William Solum, Lawrence Smith, Steven C Y 42938-lcb_24-4 Sheet No. 13 Side A 02/02/2021 10:18:46 A 02/02/2021 13 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 13 Side B 02/02/2021 10:18:46 M K C Y 1202 1202 1208 1181 1181 1183 1187 1187 1195 1164 1164 1165 1165 1168 1168 1188 . .... .... ...... 1176 .. ...... 1180 Ipse Dixit Ipse ...... 1202 1202 ...... ...... 1161 ..... ...... 1162 Reasoning ...... Reasoning ...... 1173 1173 ...... in the Marshall Court ...... 1185 1185 ...... Court in the Marshall Buttressing the National Economy .... Economy National the Buttressing

: Ipse Dixit ...... 1187 1187 ...... Dixit Ipse and Teleology . Teleology and Institutionalizing Judicial Review ...... Review Judicial Institutionalizing

...... : Ipse Dixit Ipse Dixit Ipse intentionalism by no means predominated as the the as predominated no means by intentionalism Ipse Dixit Ipse as a Descriptive, Not a Normative Term ...... Term a Normative Not as a Descriptive, Ipse Dixit ...... 1164 1164 ...... Dixit Ipse pronouncements featured prominently the in constitu- Reasoning ...... 1160 Reasoning Marbury v. Madison Marbury v. McCulloch v. Maryland McCulloch Ipse Dixit Dixit Ipse ipse dixit ipse Ipse Dixit 1. 2. 1...... Cases Property Interests in Marshall’s 2...... Overreach? Judicial 1. and Intentionalism 2. Textualism, Skepticism 3.... Reasoning Moral and Precedent-Based, Historical, Structural, 1. and Second-Order First Impression Cases of 2. Varieties of 3. C. Procedure of of and Manipulation Interest Conflicts A. and Interpretive Modalities B.Interpretive Approaches in Case Law Marshall’s C. Second-Order B.Federalism and Distinction, Law/Politics The Courts, The B. Non-Hierarchical Interpretive Pluralism Century ...... 1153 1153 ...... Century Order A. Meta-Interpretive IssuesMarshall Court in the A. Partisan and as Framer Marshall tional adjudication of the Marshall Court. Court. Marshall of the adjudication tional Marshall the on constraints clear provided rarely text The constitutional their Originalists, New from language borrow to because, discretion Court’s out.” “runs meaning original where construction” of “zone the in cases arose meaning. the Constitution’s about arguments plausible among chose Justices Justicesthewithout simply declaredAt key points, law the jus- what was, not evidenceortification,original on based the of not intent Framers’ also but the text. the constitutional meaning of Marshall Court’s governing interpretive approach. Rather, that approach was was approach that Rather, approach. interpretive governing Court’s Marshall sec- call I what and precedent, law common reasoning, Historical pluralist. ond-order Recently, however, originalists have made claims that constitutional adjudi- constitutional that claims made have originalists however, Recently, alwayscationhasUnited been originalist. the This States in Article maintains invoked Court the claimsthatthe doubly misleading. such Marshall are First, Framers’ intentions never undertookbut any investigation into those inten- rhetorical this tions. Second, IV.and Pluralism Interpretive II.Second- and Pluralism Interpretive Field: Conceptual the Defining I.the Nineteenth in Originalism of Question The Introduction: 1152 1152 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM III. 1169 ...... Law of Rule the Establishing Marshall: John 42938-lcb_24-4 Sheet No. 13 Side B 02/02/2021 10:18:46 B 02/02/2021 13 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 14 Side A 02/02/2021 10:18:46

, . , : EV R 305–

ERGER L. MERICA B A AOUL R ORDHAM . 873, 881 (2011) (2011) 881 . 873, MENDMENT ] (observing that] (observing with inventing the A See See EV R Rebooting Originalism Rebooting

EMPTING OF EMPTING , 75 F n); Robert Post & Reva T L. Raoul Berger similarlysaw

Rebooting HE T

ERCY ERCY , Dred Scott M OURTEENTH

. F ORK at 130. at ET B

The Most Faithful Originalist?: Justice Justice Originalist?: Faithful The Most D Ipse Dixit ...... 1215 1215 ...... Dixit Ipse Id.

H. L.J. 239, 247 (2009) (explaining that the the that (explaining (2009) 247 239, L.J. (crediting (crediting

(1987) 1950s, (noting that after the “judicial

, 88 , 88 U. UKE OBERT

Warren and Burger Courts had gone too far,” Era Court negated legislation, the Warren Court ocess and equal protectio 1261

, 59 D 32 (1990) vention, not without its historical antecedents, antecedents, historical its without not vention, Lochner 1177, AW

decision. R Until recently, most originalists recognized that that recognized originalists most recently, Until . L 1 RANSFORMATION OF THE Original Understanding, Legal Realism andInterpretation the EV T R

L. HE NINETEENTH CENTURY CENTURY NINETEENTH T

: Dred Scott OWA Living Originalism Living . 1185, 1188 (2007) [hereinafter Griffin, Griffin, [hereinafter (2007) 1188 1185, . 72 72 I ” EV , UDICIARY R J EDUCTION OF THE

S L. , RobertN. Clinton,

. 1977) (noting that while the that while the 1977) (noting LL

C. C. and Discretion, Pluralism, Conclusion: Originalism as a Political Practice: The Right’s LivingConstitution See, e.g. See, OLITICAL non-original- and originalists by both written originalism, on scholarship Most It would be hard to count on the fingers of both hands and the toes of both have in head, opinions that the of one’s hairs youthful even on the yea, feet, fact been rendered not on the basis of what the Constitution originally meant, buton the basis what of the judges currently thought it desirable for it to P 1 I. INTRODUCTION: THE QUESTION OF ORIGINALISM IN THE THE IN OF ORIGINALISM QUESTION THE I. INTRODUCTION: (rev. ed. (rev.

M K OVERNMENT BY HE V. V. 1216 ...... Fixity Without Marshall’s Authority Gift: of excesses perceived the to a response was movement the that ists, acknowledges Courts. Burger and the Warren judicial activism Strang, Lee Court); the liberalof Warren Thomas, Justice Scalia, and the Future of Originalism of “This Constitution originalism is a twentieth-century in a is twentieth-century originalism but not realized as a comprehensive approach to interpretation until about 200 years years 200 about until interpretation to approach a comprehensive as realized but not original- of of his own version defense and candid charming In his after Framing. the (describing originalism as a “subversive movement” and acknowledging that “[o]riginalist first appeared arguments in modern in the 1970s”). form Robert Bork dates the movement away originalism the backfrom to originalism over the debate that acknowledges Bork However, process). due substantive of concept first became acute during the Warren and Burger Courts. the Warren Court as a qualitative departure from the Court’s traditional role. went further in initiating legislative policy from thebench). 06 originalism “was driven by concerns that the the to response a as thought jurisprudential conservative modern (describing (2006) 552–54 545, T G particularly in the realms of substantive due pr Siegel, 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1153 MARSHALL'S 2020] Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM interpreted to give effect to the intent of the Framers”); Stephen M. Griffin, 2008 U. 2008 “sweeping decisions Court” led of the Warren conservatives “to insist that the Constitution be ism, Justice Scalia acknowledged as much: as much: acknowledged Scalia ism, Justice conservatives . . . became uncomfortable with the naked exercises of raw judicial power employed judicial power employed raw of conservativesnaked exercises . with. the uncomfortable. became by a federal judiciary that had come to accept the realists’ vision of the judicial role”); Thomas B. Thomas the judicial B. role”); of vision realists’ accept the to that had come judiciary federal by a ColbyJ. Smith, & Peter C Y 42938-lcb_24-4 Sheet No. 14 Side A 02/02/2021 10:18:46 A 02/02/2021 14 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 14 Side B 02/02/2021 10:18:46

. M K L.

HY UB . C Y P ROM ROM OOD OOD W 599, 599,

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note 1,

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. supra . HEORY criterion for for criterion , , 98 H EVIEW UB T R The Tradition of of The Tradition the P (2012) ARV

ORK H &

34 . 849, 852 (1989) (1989) 852 . 849, Honorable Neil M.

] (pointing out the ] (pointing RIGINALISM AND THE EV O , 31 J.L.

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was motivated by a desire UDICIAL J L. EO

RIGINALISM AND THE . critical literature quickly quickly critical literature O 3

IN , ONSTITUTIONAL , 2 G OVERNANCE (rev. ed. 1994) (contrasting the ed. 1994)(rev. (contrasting C

C APPAPORT 4 ODERN ODERN -G R

M & ELF AW Increasingly, originalists have be- originalists Increasingly, S 6 L OSMIC OSMIC . 659, 664 n.14 (1987) (citing Supreme Supreme (citing (1987) n.14 664 . 659, APPAPORT , 57 U. , 57 C R

. 611, 611–12 (1999) [hereinafter Barnett, Barnett, [hereinafter (1999) 611–12 . 611, INNIS Original Understanding Original Marbury v. Madison Marbury ADE ADE R ISE OF OF ISE B.

G terpretive methodology” in early constitutionalterpretive methodology” EV III, R C iginalist position that “constitutional change can L. R -M

IGHT TO TO IGHT

. M

R A L. HE

. T 1220 (concluding that “originalist interpretation . . . . 1220 (concluding that “originalist interpretation . The New Originalism The New ICHAEL ICHAEL UDGE

J OY , at M

ILKINSON ILKINSON , 73 V , 73 & W OLFE The Original Understanding of Original Intent Original of Understanding The Original Two (More) Problems withOriginalism , 45 L [hereinafter

NALIENABLE

I 7 note 1, at 373–79 (characterizing Justice John Marshall a as strict INNIS INNIS note 1, ARVIE ] (dating the] (dating advent of originalism to the writings of Edwin Meese G ]. and so-called New Originalists, writing since the 1990s, 1990s, the since writing Originalists, New so-called and 4 H C

HEIR HEIR supra supra J. M

, (“The of idea originalism as an exclusive theory, as 5 Originalism: The Lesser Evil Lesser The Originalism:

] (calling originalism “the dominant philosophy of interpretation” into the O. NTERPRETATION TO HRISTOPHER HRISTOPHER Lesser Evil Lesser I ERGER OSING OSING Rules for Originalists for Rules (2008) OHN L

J 259, n.36 (2013) 259, n.36 , C

, Clinton, , Clinton, , , Larry D. Kramer, Kramer, D. , Larry RE RE

2 A 908 era); B era);

ONSTITUTION Statement of Lawrence B. Solum, Hearings on Nomination of the of Nomination on Hearings Solum, B. Lawrence of Statement e.g. See, C See, e.g. See, Antonin Scalia, e.g. See, e.g. See, 907, Recently however, in Senate testimony in support of the nomination of Neil Neil of in the nomination support of testimony in Senate however, Recently mean. Y 6 7 5 2 3 4 . 885, 906–07 (1985) [hereinafter Powell, Powell, [hereinafter (1985) 906–07 . 885, ’ Lochner OOD ONSTITUTION ONSTITUTIONAL EV MERICANS OL and Robert Bork); Keith Whittington, E. Gorsuch to be an Associate Justice of the Supreme Court of the United States (Mar. 23, 2017), 23, 2017), States (Mar. United the of Court Supreme the of be Justice to an Associate Gorsuch https://www.judiciary.senate.gov/imo/media/doc/032317%20Solum%20Testimony.pdf. undermined that claim, that undermined occur legitimately only through the formal amendment process”). formal the through legitimately only occur Court cases going back or to 1819 reject the that Originalism for Nonoriginalists for Originalism Gorsuch to succeed Justice Scalia on the Supreme Court, originalist scholar Law- scholar originalist Court, Supreme on the Scalia Justice succeed to Gorsuch ofrenceobserved: pre- originalism history, most “For has American Solum been the dominate viewof constitutionalinterpretation.” 599 (2004) (conceding that, for much of U.S. history, “originalism was not a terribly self- terribly a not was “originalism U.S. history, of for much that, (conceding 599 (2004) constitutional of theory conscious interpretation”). C G century); twentieth early A R P C B intent); Framers’ original the to effect constructionist give who to attempted 1154 1154 the before adjudication constitutional that claimed originalists early some While instincts, originalist by informed largely was New Deal REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

largely abandoned it. abandoned largely gun to echo Solum’s claim. Solum’s gun to echo that Marshall “routinely displayed originalist tendencies”); Steven G. Calabresi, adjudication); H. Jefferson Powell, measuring constitutional decisions, emerged only in the 1970s and 1980s.”); Randy E. Barnett, Barnett, E. Randy 1980s.”); and 1970s the in only emerged decisions, constitutional measuring Nonoriginalists for Originalism An nineteenth-century tradition of judicial “interpretation” with judicial “legislation” beginning in the at 22–24 (arguing that Justice Marshall’s opinion in Federalists’ view would Constitution intentions that the not the drafters of of the be legally H. people); draft an instrument the appointed to for scriveners” “mere were they because relevant Powell, Jefferson [hereinafter Scalia, Scalia, [hereinafter to preserve the Constitution’s original the Constitution’s preserve purposes). to constituted neither a predominant nor exclusiveconstituted nor in neither a predominant 42938-lcb_24-4 Sheet No. 14 Side B 02/02/2021 10:18:46 B 02/02/2021 14 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 15 Side A 02/02/2021 10:18:46

. 12 ICH IVING IVING L

ALKIN . 1, 25 (2009) (2009) 25 . 1, EV . 1, 4 (2015) (“[I]t . 1, (2015) (“[I]t 4 R

. 635, 646 (2006) (2006) 646 . 635, EV Marbury, 101 M . 2349, 2353 (2015) (2015) 2353 . 2349, L. R EV

R EV The Supreme Court,2014 L.

. R

L. [hereinafter B [hereinafter . ARV

denote interpretive approaches . LA as an “attempt at a textual and , 84 N.Y.U. OLUM , 129 H In an uncharacteristic, non-com- uncharacteristic, In an 10 but the two approaches were never never were but the two approaches 9 3 (2011) The Misconceived Quest for the Original Original the for Quest Misconceived The McCulloch uralist. Moreover, I argue that the op- the that argue I Moreover, uralist. The Irrepressible Myth of of Myth Irrepressible The That characterization does not fit the the fit not does characterization That , 115 C Burke, 57 A 8

and inalists and non-originalists do not differ. not do non-originalists and inalists RIGINALISM note 1, at 246 (arguing that living constitutionalism use the term to former O Originalism Is Bunk Is Originalism Gibbons supra IVING IVING . 204, 236 (1980) (noting that even non-originalists accord ] (contendingmethods that interpretive] “are hierarchically L note 2, at 862. 862. 2, at note

EV , supra , Is Originalism Our Law? Our Is Originalism ALKIN B

Originalism Colby & Smith, M. Mitchell N. Berman,

, Lesser Evil Lesser , 60 B.U. L. R L. B.U. 60 , ] (reconciling originalism and living constitutionalism through a “text and principle” ACK J see also see also ). Scalia, e.g. See, See See William Baude, “Living constitutionalism” is one term placed in opposition to originalism, not all but non- . 2706, 2725 (2003) (seeing originalist textualism as implicit in Marshall’s opinion in When faced with a case of first impression in which the Constitution’s text is text Constitution’s the aofwith casein which first When faced impression One version of contemporary originalism asserts that, while originalism is not not is originalism while that, asserts originalism contemporary of version One On the first point, Jack Balkin has helpfully deconstructed the opposition be- the opposition deconstructed has helpfully Balkin Jack first point, On the 11 11 12 8 9 10 EV R M K RIGINALISM

that little separates a moderate non-originalist from from his ownthatseparates “faint-hearted” non-originalist a little moderate originalism.

bative moment, Justice Scalia conceded that most non-originalists are moderate and and are moderate non-originalists most that conceded Scalia Justice moment, bative provides a good description of the evolution of originalist methodology). (characterizing Marshall’s opinions in at least suggestive of a resolution, orig a resolution, of suggestive at least O the Written Constitution: Text,Precedent, and L. the exclusive mode of constitutional interpretation, it sits atop a hierarchy and pre- and a hierarchy it sits atop interpretation, of constitutional mode the exclusive conflict. modalities interpretive vailswhen 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1155 MARSHALL'S 2020] Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

tween originalism and living constitutionalism, living and originalism tween methodology of the Marshall Court. By that definition, Marshall was no originalist. no originalist. was Marshall definition, By that Court. Marshall of the methodology pl methodological a non-hierarchical He was the help us characterize not does non-originalism and originalism position between be- is unhelpful The opposition Court. the Marshall of jurisprudence constitutional has that of theories a family is originalism (2) opposition; a not real it is cause: (1) grown so capacious as to lose its usefulness as a description of an interpretive ap- to attempt to methodology historical error of is a fundamental (3) it and proach; to under- project seeks The current debates. of contemporary light in the past read terms. own its in Court Marshall of the methods interpretive stand the Term—Foreword: Does the Constitution Mean What It Says? approach); approach); (averring that all non-originalists “explicitly assign original meaning or intentions a significant Brest, Paul enterprise”); the interpretive in role Understanding and original Strauss, David text A. history”); “presumptive weight the to originalists are living constitutionalists. I different in be as a “living” document that must interpreted differently that treat the Constitution historical in light developments. of time periods [hereinafter Baude, Baude, [hereinafter the hierarchy”). of top with at the originalism structured, so faras apart their adherents sometimesassume. originalist interpretation”); Michael Stokes Paulsen, Marbury C Y 42938-lcb_24-4 Sheet No. 15 Side A 02/02/2021 10:18:46 A 02/02/2021 15 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 15 Side B 02/02/2021 10:18:46

. . : M K Y ’ 13 14 & 6 C Y OL AW P ONST ONST

. L IBERTY Baude, L ARBER UB F P Originalism Originalism

, 24 C & , 27 C A.

CTIVE CTIVE A J.L.

, . ANIEL us do not help judges ARV D ONSTITUTIONAL REYER C B (arguing that Solum’s two

are exhausted, constitutional , 34 , 34 H Obergefell v. Hodges. v. Obergefell see also see The fact that the Marshall The fact Marshall that the TEVEN 16 OLITICS IN IN OLITICS ]. Will Baude contends that originalist P 98–99 (2018) 98–99 Abortion and Original Meaning 8 (2005); 8 (2005); at 2628 (Scalia, at J., dissenting) (maintaining inalists call the “zone of construction” of “zone the call inalists Abortion id. AITH zone of construction and th F In such circumstances, even today, the lines the lines today, even In such circumstances, . 648, that state laws (2016) (concluding 648 that 15 EV Steven G. Calabresi & Hannah M. Begley, Begley, M. Hannah & G. Calabresi Steven R RINCIPLE AND

and S consequence.” P

L. ONSTITUTION : e original meaning of the Fourteenth Amendment). Most Constructinga New American Constitution C Interpretation and Construction see also see also ALLS IAMI C RIGINALISM AS (arguing that once interpretive tools that once interpretive tools (arguing O

, , Obergefell v. Hodges, 135 S. Ct. 2584, 2632–37 (2015) (Thomas, (Thomas, (2015) 2632–37 2584, S. 135 Ct. Hodges, v. , Obergefell e.g. EMOCRATIC , 70 U. M U. , 70

(2010) D

EGALL 1, 19 (Ill. Pub. Law & Legal Theory Research, Paper Series No. 07-24, 07-24, No. Series Paper Research, Theory Legal & Law Pub. (Ill. 1, 19 UDGMENT S J See,

note 8, at 2382; 2382; 8, at note , UR UR J. 128

O , Randy E. Barnett,

RIC

119, e.g. supra supra E HERRY

, . 291, 292 (2007) [hereinafter Balkin, Balkin, [hereinafter (2007) . 291, 292 . 17 , Keith E. Whittington, Whittington, Keith E. S See See have that decisions Court Supreme of defenses offered have originalists self-styled Some Non-originalists supplement including: tools, historical interpretive evidence with other See 16 17 13 14 15 OMMENT OMMENT UZANNA NTERPRETING NTERPRETING supplemented with constitutional construction). 2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id_1120244 that when(observing the meaning of the constitutional text is underdetermined, original meaning “runs out” andmust be J., dissenting) (maintaining that theas Constitution, an originalist matter, provides basisno for the recognition of a right to same-sex marriage); Court’s opinions include invocations of original meaning does not make them any any them make not does meaning original of invocations include opinions Court’s pro- Constitution the that think who Justices by opinions the than originalist more same-sex and planning family of the contexts in privacy to right fundamental tects a marriage. between originalism and non-originalism are fuzzy. are non-originalism and originalism between 65, 69 (2011) (acknowledging that the meaning of the Constitution sometimes Constitution of (2011) runs out and that meaning the 65, (acknowledging that the 69 “[o]riginalism is not a theorywhat to do when of original meaning runs out”); Lawrence B. Solum, Originalism Semantic reasoning informed Justice Kennedy’s majority opinion in in opinion majority Kennedy’s Justice informed reasoning traditionally been treated as the poster children of non-originalism. Jack Balkin provides an originalist defense of abortion rights. Jack M. Balkin, “history, tradition,“history, precedent, purpose prohibit same-sex marriage violate th originalists do not think that the Constitution provides a basis for either abortion rights or same- sex marriage. Originalist Justices Scalia and Thomas reject the idea that the Constitution as originally understood protects a right privacy to in the context reproductiveof rights a rightor to same-sex marriage. decision-makers operate within a zone of construction, where they undertake “a particularly particularly “a undertake where they construction, of a zone within operate decision-makers political task, a creativetask involving normative choices in a realm of constitutional indeterminacies”). in which original meaning “runs out.” “runs meaning original which in C is never acceptable to announce that you are ignoring the text . . . .”). . .”). . . the text ignoring are thatyou acceptable announce is never to I S C 1156 1156 meaning. original the text’s discern to attempt an with analyses their begin Both often adjudication constitutional Court Marshall the in see, we shall as However, Orig New contemporary in what place took REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM and Same-SexMarriage originalist principles play a very small role in the decide hard constitutional questions). prohibiting for basis a provide not could Amendment the Fourteenth of meaning the original that Originalism (2009) judicial (advocating precedent, constraints, adherence to restraint process through and internalized norms). 42938-lcb_24-4 Sheet No. 15 Side B 02/02/2021 10:18:46 B 02/02/2021 15 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 16 Side A 02/02/2021 10:18:46

. . . 19 23 EV EV EV 108 108

R R R

L. L. L.

. 103, LL IXING THE THE IXING I LL D

I F

2 N.U.

: AG AG that the mean- that HIO HIO B The Inclusiveness of of Inclusiveness The , 2012 U. REATION , 2013 U. , 2013 The Sacrifice of the New the New of Sacrifice The REEN , 42 O C

, 20 G ]. The implications ofJonathan ECOND S (2018).However, originalists who

HE ion thesis” affirms affirms thesis” ion T

, 9–11 Thomas B. Colby, (providing examples(providing basic of questions that

RA ] E Originalism’s Bite Originalism’s

IENAPP see also Solum has offered a definition of original- of definition a offered Solum has G note 19, at 1942. 1942. at 19, note 18 . 433, 435 (2013). (2013). 435 . 433, The Balkinization of Originalism of Balkinization The Unwritten Constitution EV supra supra Originalism OUNDING , R

F L. ONATHAN Originalism: A Thing Worth Doing . . . . . Doing Worth Thing A Originalism: note 12, at 14; 14; 12, at note Stephen E. Sachs, Sachs, E. Stephen Originalism and the Unwritten Constitution Unwritten the and Originalism & supra supra ORDHAM L.J. 713, 719–20 (2011) (listing various strains within originalism, originalism, within strains various (listing (2011) 719–20 713, L.J.

. , 82 , 82 F That is, originalists seek to find the original meaning and, having having and, meaning original the find to seek originalists is, That EO 20 Unwritten Constitution ONSTITUTION IN THE Some originalists refuse to comment upon particular cases, reluctant to to reluctant cases, particular upon to comment refuse originalists Some C William Baude , 99 G D. A. Jeremy Telman, 22 Solum, Solum, James Fleming finds that this characteristic of originalism renders it a “family of theories” See See Lawrence B. Solum, Solum, B. Lawrence One critic oforiginalism has identified 72 different theoreticalstrains within the Originalists can, and often do, disagree on how particular cases ought to be ought to cases on how particular disagree do, often and can, Originalists On the second point, the term “originalism” today encompasses an extended an extended encompasses today “originalism” the term point, On the second Solum’s definition leaves room for a great deal of variation among original- among variation of deal great a for room leaves definition Solum’s 20 21 22 23 19 18 21 M K MERICAN Originalism

the New Originalism rather than a coherent approach to constitutional theory. James E. Fleming, Fleming, E. James theory. constitutional to approach a coherent rather than originalist camp. Berman, Second, the “constraint principle” stands for the view that the constitutional text’s text’s constitutional the that view the for stands principle” “constraint the Second, constitu- enforce and implement, interpret, who those constrain should meaning doctrine. tional 669, 670 (2012) (arguing that originalists are united only in their rejection of moral readings of of readings moral of rejection their in only united are originalists that (arguing (2012) 670 669, the Constitution). Solum, [hereinafter (2013) 1941 1935, thesis can, consistent to how do so basedfixation with on fidelity Gienapp’s thesis, the adhere to Constitution of in the came to think the 1790sthe Framers based on normative or theory history. of the accidents to untethered Telman, [hereinafter (2016) 548 529, Gienapp’s work on the fixation thesis have not yet emerged. Gienapp contends that the Framers the Framers that contends Gienapp yet emerged. not have thesis the fixation on work Gienapp’s did not think the Constitution of as having a fixed meaning in 1789,but that do they came to so J 1790s. the of the course over A family of methodological approaches. methodological of family J., (Thomas, 169 (2007) 124, 550 U.S. Carhart, v. Gonzalez marriages); same-sex on bans . hasconcurring) no basis Court’s in the “the (reiterating abortion jurisprudence the view. that . divide originalist scholars and of cases in which Justices Scalia and Thomas, both originalists, came reasoning). different completely on based another concurred or with one different conclusions to 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1157 MARSHALL'S 2020] Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM ing of each constitutional clause “ising clause is of at framed ratified.” fixed constitutional [it] each and the time ism, comprising two components. First, the “fixat the First, two components. ism, comprising found it, treat it as dispositive of constitutional disputes. disputes. of constitutional dispositive as it treat it, found permit such details to interfere with the elaboration of their theoretical models. theoretical of their the elaboration with to interfere details such permit (2016) (“In our theoretical work we’ve tried to avoid getting avoid sucked into specificwe’ve(2016) tried to work historical (“In our theoretical or Constitution”). including original intent, original meaning, subjective and objective meaning, actual and hypothetical understanding, standards and general principles, differing levels of generality, original expected application, original construction, principles, interpretation, normative and semantic originalism); James E. Fleming, decided. ists. C Y 42938-lcb_24-4 Sheet No. 16 Side A 02/02/2021 10:18:46 A 02/02/2021 16 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 16 Side B 02/02/2021 10:18:46

M K

C Y 59– supra , (2017) (2017) (“[J]ede (“[J]ede

ORTRÄGE V

: EGALL (1906) 156–57 UDGES AND THE

J .”). Lawrence Solum Solum .”). Lawrence 156,

1971)

ESCHICHTE CTIVIST L.J. G theory A

: ALE ERCHTESGADEN GEHALTENERCHTESGADEN B ZU , 127 Y , 127 ONSTITUTION 1854 C originalism as encouraging a form of judicial itics of originalism cannot agree on the on the agree cannot originalism of itics sk is to understand the Marshall Court’s Court’s Marshall the to understand is sk e to its continuing relevance to the pre- the to relevance continuing its to e have led them to follow a different path. path. different a follow to them led have allowing the evidence to shape one’s per- one’s to shape evidence the allowing ERBST ERBST POCHEN DER NEUEREN H E ACK THE B Some critics of originalism maintain that mod- that maintain originalism of critics Some 24 (2020) (comparing originalism to a Shibboleth that signals

BER DIE AYERN IM AKING d ihr Wert beruht was dem, gar nichtd ihr Wert hervorgeht, aus ihr auf Ü

B , T

es to specific cases. to es , Originalism Without Text Without Originalism 19–43

, than imposing one’s own constructs onto historical mate- historical onto own constructs one’s imposing than VON ANKE II R AW . The Marshall Court’s approach to interpretation was plural- L USHNET T ARK M AXIMILIAN AXIMILIAN

ipse dixit MERICAN , A M EOPOLD VON Stephen E. Sachs, Sachs, E. Stephen L In sum, where originalists and cr and originalists where In sum, 25 GE OF See See See e.g. See, Ranke’s admonition is aspirational. Inevitably, the past holds out to us the us the to ispast holds out aspirational. Ranke’s admonition the Inevitably, ÖNIGE ÖNIGE A In this Article, I focus on the Marshall Court’s recourse to what I am calling calling am I what to recourse Court’s Marshall the on focus I Article, this In This Article is a work of history, primarily concerned with reconstructing a past past a with reconstructing primarily concerned history, of work a is This Article 26

K 26 24 25 (Theodor Schieder & Helmut Berding eds., Oldenbourggesellschaft

EXT of the modern study of history, put it, the historian’s task is to treat every historical historical every is to treat task the historian’s it, put history, of study the modern of each histor- is to treat interest is, the historian’s that God”; to as “immediate epoch an ey without sake own its for period ical sent. (imagining originalists operating in a legalwithout a written system constitution). ern originalism, to the extent that it has abandoned its emphasis on judicial restraint, restraint, on judicial emphasis its abandoned has it that extent to the originalism, ern ac- judicial conservative for foundation a theoretical provide than more little does tivism. N note103–15 16, at (characterizing contemporary ception of the past of the past rather ception rials. second-order about arguments our from doctrinal as that might detract controversies, hope that we might learn lessons from it, and we cannot escape the temptation to to temptation the escape cannot we and it, from lessons learn might we that hope the However, eras. bygone of wisdom the in problems current to solutions out seek inductive, is method historical preferred 60 1158 1158 all variants to encompass definition isnot capacious enough Solum’s even However, withincontemporary originalism. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM and Lee Strang are two additional examples of originalist scholars who, despite voluminous writings, rarely theori apply their DEM DEM contours of the movement, one can always manufacture an argument that the Mar- the that argument an manufacture always can one movement, of the contours ta If the originalism. embraced Court shall founder the Ranke, von Leopold As to interpretation. approach epoch’s historical interpretive methodology, however, originalism does not provide a helpful rubric. a helpful provide not does originalism however, methodology, interpretive Epoche ist unmittelbar zu Gott, un Epoche ist unmittelbar zu Gott, sondern in ihrer Existenz selbst, in ihrem Eigenen selbst.”epoch (“Every is immediate to God, the on rests value its rather, epoch; the of out emerged by what measured not is value its and epoch’s existence, on its very self.”) (Author’s translation). conservatism rather than adherence to any particular methodological approach); S approach); particular methodological any to conservatism rather than adherence activism that would have offendedfirst-generation originalists). istic and non-hierarchical. Where different interpretive modalities could not be rec- not be could modalities interpretive different Where non-hierarchical. istic and authoritative gave they Because crossroads. a at arrive would Justices the onciled, The Mar- decisions. made snap they approach, interpretive particular to no priority shall for not its Court explain did preference one interpretive particular they choice; might that reasoning the engage not did 42938-lcb_24-4 Sheet No. 16 Side B 02/02/2021 10:18:46 B 02/02/2021 16 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 17 Side A 02/02/2021 10:18:46 ipse decision making.

ipse dixit . These cases illustrate. These cases Marshall’s plify the vital role of second-order of second-order role vital the plify alism explains why I think the third con- third the I think why explains alism retation, which were pluralistic and non- and pluralistic were which retation, reasoning at all. What reasoning was was in- reasoning What at all. reasoning

legal legal rich and strange in constitutional interpretation interpretation constitutional in strange and rich , played a significant role in the decisions of the Marshall the Marshall of decisions in athe role , played significant McCulloch v. Maryland v. McCulloch and and detail two iconic constitutional opinions of the Marshall Court: Court: Marshall of the opinions constitutional iconic two detail ipse dixit Part III puts Justice Marshall’s jurisprudence in the context of his biography biography his of context in the jurisprudence Marshall’s Justice puts III Part Part IV provides examples of the methodological pluralism that characterized that characterized pluralism the methodological of examples provides IV Part Although I discuss some other nineteenth-century Justices here, I focus on John John on focus I here, Justices nineteenth-century other some discuss I Although John Marshall is widely regarded as the greatest jurist in American history . . history American in . jurist greatest as the regarded widely is Marshall John . law” . . constitutional was Mar- American . It of “father the is Marshall John an institutional Court the made and prestige Court’s the established shall who rulings constitutional Marshall’s politics. constitutional nation’s the in player In its constitutional adjudication, the Marshall Court drew on existing tradi- existing on drew Court Marshall the adjudication, its constitutional In in his opinions. Part V concludes by noting that both originalists and non- originalists both that noting by concludes V Part opinions. in his M K that originalism cannot resolve. Second, I outline the Marshall Court’s non-hierar- Court’s Marshall the outline I Second, resolve. cannot originalism that plur That pluralism. methodological chical cept, second-order second-order cept, ques- political major resolve to managed Marshall role. Court’s the of vision his and applications as legitimacy their retained somehow that opinions legal through tions legislation. in judicial exercises than rather principles of legal to text, to intentions, appeals how seeming and shows opinions Court’s the Marshall concealed purposes and objects Constitution’s or to the Court.

non-hierarchical pluralism at work and at work exem and pluralism non-hierarchical It then examines in It then examines Madison v. Marbury hierarchical. Part II lays out some concepts that I apply to my analysis of the opin- the of analysis my to apply I that concepts out some II lays Part hierarchical. issues meta-interpretive of concept the I introduce First, Court. Marshall the ions of 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1159 MARSHALL'S 2020] the Constitu- of meaning original the on turn not did crucial decisions Their most on turned not have may tion; they opinion. written of the bounds the outside off-stage, it were, as occurred, volved Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM dixit justification, some with do so can Both legacy. to Marshall’s claim lay originalists inter- support current to evidence for approach interpretive Marshall’s but mining trends misses much that is pretive our Consti- remains Constitution John Marshall’s But Republic. during the Early assumptions that background become have dicta and his holdings of Many tution. day. this to adjudication constitutional inform survey forcomplete a proxy a as serves picture resulting Marshall’s approach. The the of third first the and century the nineteenth in adjudication of constitutional com- John Marshall’s of light in justified seems device heuristic This twentieth. manding David influence. revisionist whose Schwartz, scholarship upends some commonassumptions regarding Marshall’s legacy nonetheless acknowledges Mar- shall’s current status: Only the result of that reasoning made its way into the law. into way its made reasoning of that the result Only interp and statutory common-law for tions C Y 42938-lcb_24-4 Sheet No. 17 Side A 02/02/2021 10:18:46 A 02/02/2021 17 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 17 Side B 02/02/2021 10:18:46

, . , M K EV C Y R supra

, L.

27 U. ORK

. W ONSTITUTION C ARSHALLTHE AND M , 113 N , 113 OOD G OHN J

: (1833). (1833). the Marshall Court did not the Marshall not Court did REASONING REASONING 30 at 960 (observing that many of Story’s Story’s of many that (observing 960 at ions or in areas where clear consti- clear where areas in or ions id. (2019). (2019). ONSTITUTION 2 erarchical; the Court made use of the of the Court use the made erarchical; Grounding Originalism Grounding C ONSTITUTION ONSTITUTION RIGINALISM AND THE C O IPSE DIXIT DIXIT IPSE modalities available to judges at the time of the modalities of the available judges at the time to

, ARYLAND M

. Joseph Story and the American Constitution by James T. PIRIT OF THE PIRIT THE OF APPAPORT S

HE & Joseph Story’s Commentaries on the Constitution: A Belated Review 29 T . 954, 959 (1972) (listing Chancellor Kent and John Marshall as as Marshall John and Kent Chancellor (listing (1972) 959 . 954,

, ULLOCH V EV C R

INNIS C OMMENTARIES ON THE G L. C

(presenting their argument for(presenting “original methods originalism”). Other . C ,

M CHWARTZ S was of such central importance in the development of nineteenth- of development the in importance central such of was Morgan D. Dowd, D. Dowd, Morgan

TORY OLUM

See See , AND SECOND-ORDER SECOND-ORDER AND S S. 28 William & StephenSachs, Baude E. DYSSEY OF See See O , 72 C AVID L.J. 1285,1285–86 (1985) (calling Story’s massive and most the most widely treatise OSEPH J e.g. See, allNot originalists care whether the interpretiveinformed originalism the practices of D note 7, at 116 7, at note EAR EAR tended to be cases of first impression . . . giving Marshall the historical repu- historical the Marshall . . giving . impression first of be cases to tended tation of the original and authoritative “Expounder of the Constitution.” The constitutional issues that came before the Marshall Court arose either in in either arose Court Marshall the came before issues that The constitutional ALE 28 29 30 27 II. DEFINING THE CONCEPTUAL FIELD: INTERPRETIVE PLURALISM INTERPRETIVE FIELD: II.DEFININGTHE CONCEPTUAL note 1, at 15.Some originalists recognize multiple interpretive modalities and argue that contemporary constitutional decision-makers are bound only to use the interpretive tools available at the framing. McClellan Early Republic. Nor need they; originalism may have normative value even if the Framers did not did Framers the if even value normative have may they; originalism need Nor Republic. Early the the establishment of “From acknowledged, Bork Robert have. not may They it. embrace to at least power claimed judges the some century, eighteenth the end of federal at the judiciary strike down statutes on the basis principles of to be not found in theConstitution.” B interpretive tools that it adapted from traditions of common-law and statutory in- statutory and common-law of traditions from adapted it that tools interpretive they that tools interpretive chose the the Justices craftsmen, skilled Like terpretation. privilege textualist or intentionalist modalities of constitutional interpretation. The The interpretation. constitutional of modalities intentionalist or textualist privilege and non-hi pluralistic was approach Court’s “pronouncements about a national system of law are firmly fixed as part of our constitutional our as part of fixed firmly are law a national about “pronouncements of system Powell, Jefferson H. heritage”); 94 Y supra originalists proclaim that we are bound by the original meaning of the Constitution as lawfully amended. 1455, 1457 (2019) (defending their “inclusive” originalism, which argues that originalists 200-Y the only two figures who could rival Story’s influence); 1160 1160 on the treatise his because Story to Joseph dedicated be also will attention Some Constitution REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) law. century constitutional 1/13/2021 3:30 PM discussed treatise on constitutional law period). in the antebellum the interstices between clear constitutional provis constitutional clear between the interstices founda- while issues, of these Some conflict. read to be could commands tutional mean- original the Constitution’s to appeal an through resolved be not could tional, claims, originalists’ to some contrary Moreover, ing. recognize our “original law” as it has been lawfully changed). Such versions of originalism can be reconciled with understanding my of the Marshall Court’s interpretive methodology to the extent interpretive of range the on can agree that we Framing. 42938-lcb_24-4 Sheet No. 17 Side B 02/02/2021 10:18:46 B 02/02/2021 17 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 18 Side A 02/02/2021 10:18:46 (Bonnie

Interpretive Interpretive 45 . 149, 159– . 149,

§ Faced with Faced with decisions can 32

HEORY HEORY OMMENT T C

. 31 EGAL Originalism and Interpretive Interpretive and Originalism ONST L decisions. These , 30 , 30 C higher norms but only exercisesof will ROBLEMS OF P ipse-dixit decisions would have been equally con- equally have been would decisions

(Max Knight, trans., ed. 2d 1967) (arguing that legal

ipse dixit 353 . 519, 560–78 (2003) [hereinafter Nelson, Nelson, [hereinafter (2003) 560–78 . 519, AW EV L R

OriginalismAll the Way Down? The Justices were not far enough removed from the time the time from removed far enough The Justices were not L. NTRODUCTION TO THE 33 I

. , note 32, at 154–65 (describing methodological heterodoxy in in heterodoxy methodological (describing 154–65 32, at note HI HEORY OF OF HEORY C T

ELSEN supra K URE URE P , Kurt T. Lash, Lash, T. Kurt ,

, ANS , 70 U. , 70 ] (discussing different interpretive traditions at the time of the Framing). traditions different interpretive ] (discussing the Framing). at the time of H Lash, ELSEN See, e.g. See, See See See K Because the Marshall Court was committed to establishing the function of the the of function the establishing to committed was Court Marshall the Because The Constitution was the first of its kind. There was no consensus about the the about consensus no was There its kind. of first the was The Constitution The Justices of the Marshall Court established no hierarchy among interpretive interpretive among hierarchy no Court established Marshall the of The Justices 32 33 31 M K ANS

constitutional interpretation the drafting at the time of ratificationand the Constitution of and Early the during Republic). specificquestions of constitutional interpretationon which the Framers themselves dic- not were that choices interpretive made Justices the early divided, were sharply gen- by determined, but not constrained, were and itself Constitution the by tated canons. eral interpretive federal courts as neutral arbiters of the law, the Justices did not highlight their ap- their not highlight did Justices the law, of the arbiters as neutral courts federal peals to extra-legal considerations. They stated theirpositions rather arguing than con- them. Crucial positions engaging rather contrary than dismissed theyfor them; on extra-legal turned judgments stitutional be reconciled with some version of original meaning. However, because original original because However, meaning. original of version some with be reconciled contrary contested, was meaning sistent with original meaning. meaning. original with sistent A. Meta-Interpretive IssuesMarshall Court in the document. this unique to appropriate or methods method interpretive of the founding for there to be occasion to introduce the notion of a consti- notion of living the introduce to occasion to be for there founding of the to subscribe not did Framers the indicates, work Gienapp’s Jonathan as But, tution. Conventions 61 (2014) (rejecting the notion appropriate statethat61 methodologies to constitutions interpretive the notion (2014) (rejecting could be applied the federal to Constitution and stressing ways in nature the which of the unique approaches); interpretive Caleb Nelson, latter called different for 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1161 MARSHALL'S 2020] address. to needed they problems the to suited best as regarded conclu- different supported modalities interpretive where a result, As modalities. sions,Court’s decision thefavor one to modalityanother overdetermined was not positive to appeal not, did Justices the and cannot, one is, That reasoning. legal by strategies. interpretive available among a choice law to justify Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM Litschewski Paulson & Stanley L. trans., Paulson 1934) (calling the law a framewithout a picture); H norms provide the frame within which various interpretations can arise; however, those interpretations do not involve cognition and application of legal policy). of in the furtherance Conventions C Y 42938-lcb_24-4 Sheet No. 18 Side A 02/02/2021 10:18:46 A 02/02/2021 18 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 18 Side B 02/02/2021 10:18:46

, M K 34

C Y . 559, 559 559 . 559, EV R

Originalism and and Originalism ] (identifying] the L.

. T Marbury v. Mad- S , the Court addressed addressed , the Court In the Marshall Court, In the Marshall Court, Reasoning 39

LEVELAND

40 Ipse Dixit D. A. Jeremy Telman, Telman, D. A. Jeremy See See pre-Marshall Court also operated in a zone of That is, the Justices of addressedThat is, the subjects McCulloch v. Maryland v. McCulloch In 37 Chisholm v. Georgia, 67 C Because the Framers reached no consensus on any Because reached the Framers note 22, at 551. 38 fore interpretation began. interpretation fore All That Is Liquidated Melts into Air: Five Meta-Interpretive Issues Air: Five Meta-Interpretive into Melts Is Liquidated That All supra Originalism and Second-Order Second-Order and Originalism , Reasoning in Reasoning note 19, at 9–12. 9–12. at 19, note 1, 5 (2019). 1, 5 (2019). supra

. Originalism , at 1–19 (introducing his thesis that the conception of the Constitution conception as fixed was his thesis that the at 1–19 (introducing EV Ipse Dixit R

IENAPP D. A. Jeremy Telman, Telman, D. A. Jeremy (1803). 177 138, Cranch) (1 5 U.S. Madison, v. Marbury (1819). 316 Wheat.) (4 17 U.S. Maryland, v. McCulloch Telman, In a related have article, argued I the that G id. See 35 Meta-interpretive frames establish the parameters within which constitu- which within parameters the establish frames Meta-interpretive for example, the meta-interpretive frame was the question of judicial review of of review judicial of the question was frame the meta-interpretive for example, Did such a document trigger the rules of interpretation applicable to an ordinary statute? To a treaty? Tocontract? a Might different aspects of the Con- hybrid a so that conventions, preexisting sets of different implicate stitution During the Framing and the Early Republic, there were no fixed rules for the for fixed rules the were no there the Early Republic, and Framing During the The Marshall Court’s constitutional decisions addressed not only interpretive interpretive only not addressed decisions constitutional Court’s The Marshall Differences between originalists and non-originalists may amount to disagree- amount to may non-originalists and originalists between Differences 36

ARRY 39 36 37 38 40 34 35 , not inevitable and was developed in the course of debates among theFounders in the 1790s). ison tional decision makers can resolve particular interpretive issues. In issues. In interpretive particular resolve can makers decision tional actions. executive and legislative dual meta-interpretive issues entailing the extent of Congress’s implied powers and and powers implied Congress’s of extent the issues entailing meta-interpretive dual sovereignty. state of scope the original meaning ran out be ran meaning original Second-Order Second-Order construction in which original meaning ran out. 24 B That idea slowly took root during debates over the Constitution’s meaning in the in the meaning Constitution’s over the debates during root took slowly That idea 1790s.

1162 1162 in 1789. purpose and meaning a fixed have could the Constitution that the notion REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM of these meta-interpretive issues, originalism cannot resolve them. Constitutional Constitutional them. resolve cannot originalism issues, of these meta-interpretive the Constitution’s than other authority of to sources resort to had makers decision commit- theoretical or pragmatic, political, own their as such meaning, original them. to resolve order in ments because interpretation took place within a non-originalist meta-interpretive frame, frame, meta-interpretive a non-originalist within place took interpretation because B. Non-Hierarchical Interpretive Pluralism elaborates: Nelson Caleb constitution. a written of interpretation issues but also meta-interpretive issues. issues. meta-interpretive but also issues (2019) [hereinafter Telman, Telman, [hereinafter (2019) the Court). dividing issue the meta-interpretive as sovereignty state of question ments about when or how often original meaning runs out. runs original meaning often ments about when or how interpretation that also provided the framework for resolving other interpretive is- interpretive other resolving for framework the provided also that interpretation sues. 42938-lcb_24-4 Sheet No. 18 Side B 02/02/2021 10:18:46 B 02/02/2021 18 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 19 Side A 02/02/2021 10:18:46

, The The RIGINALISM Originalism O

, 751, 773 (2009) (2009) 773 751,

. Baude, note 45, at 788–92. EV

that disagreements that disagreements R

See See 43 L. APPAPORT supra

R ,

. & W INNIS l construction was an not original Original Methods Originalism: A New A New Originalism: Methods Original G C , 103 N , 103 M Original Methods Original See See

note 32, at 555–56. 41 sed whenever called upon to expound any part part any expound to upon called sed whenever

. 1079, 1118 (2017) (finding the distinction between between distinction the (finding (2017) 1118 . 1079, supra supra

, note 7,note at 137 substantial (finding support textualism for EV 42 R

The Marshall Court’s non-hierarchical interpretive interpretive non-hierarchical Court’s The Marshall L.

44 supra supra .

, ] (“[A]dvocates of construction have not provided evidence that that evidence provided construction] (“[A]dvocates of have not ARV note 28, at 304. 304. at 28, note , 130 H , 130 ONSTITUTION C Interpretive Conventions Interpretive supra supra

John O. McGinnis & Michael R. Rappaport, Original Methods Original OOD at 569 (citing M’Clarin v. Nesbit, 11519, S.C.L. (2 Nott & McC.) 520 Const. (S.C. G TORY See See Nelson, Nelson, Id. S Not all forms of originalism require a choice or a preference. McGinnis Rappaportand McGinnis and Rappaport argue that constitutiona note 8, at 2357–58 (acknowledging that originalists turn to construction or liquidation to In his treatise on the Constitution, Joseph Story concluded concluded Story Joseph on the Constitution, In his treatise approach was appropriate? Could specialcanons of construction, not applicable to anyordinary legal documents, be derived from the Constitution’s to answers The canons? those were If what so, and purpose? context unique generation founding the of and members clear, from were far questions these different views. of a variety expressed While this Article does not argue that the Marshall Court never engaged in in engaged never Court Marshall the that argue not does Article this While 41 42 43 44 45 M K

construction and interpretation “both real and useful”). McGinnisand Rappaport also argue that App. 1820)). valid. equally textualism and intentionalism find and some support for intentionalism in the evidence of the interpretive approach of the Framers). the of interpretive approach intentionalism the for support and some evidence of in the pluralism is inconsistent with John McGinnis and Michael Rappaport’s “original “original Rappaport’s Michael and McGinnis John with inconsistent is pluralism were that modalities excludes approach that that extent the to originalism,” methods era. the founding common during about the Constitution’s meaning resulted from “the want of some uniform rules of of rules uniform of some want “the from resulted meaning Constitution’s the about on or agreed by the disputants.” tacitly expressly interpretation

[hereinafter [hereinafter been have we and enactment, Constitution’s the of at the time embraced construction anyone able to find none.”). However, William Baude and Stephen Sachs,who likewise offer a version of original methods originalism, think construction was an original method. supra supra resolve ambiguities or vagueness in the constitutional text); William Baude & Stephen Sachs, Law of Interpretation 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1163 MARSHALL'S 2020] the in which court Carolina a South from 1820 case cites an Nelson For example, in- those unlike . is so . . States United the of Constitution “The lamented: judge a that law has of provided struments for construction, the common rules which alwaysfeelCourt must itself embarras doubtful.” degree in the smallest Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM AND THE living constitutionalism was not an original method. method. method. Theoryof Interpretation and the Case against Construction textualist or intentionalist interpretive methodologies, those methods did not pre- not did methods those methodologies, interpretive intentionalist or textualist constitu- nineteenth-century early between exist do tensions a result, As dominate. inter- one privilege that originalism contemporary of forms and adjudication tional others. over modality pretive C Y 42938-lcb_24-4 Sheet No. 19 Side A 02/02/2021 10:18:46 A 02/02/2021 19 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 19 Side B 02/02/2021 10:18:46

M K C Y ULE ULE R (1982)

8 ipse dixit decisions in decisions note 40, at 570. ONSTITUTION [the law itself ceases ARSHALL AND THE THE AND ARSHALL ipse dixit C

M note 40, at 569 n.52. n.52. 569 40, at note terexamples are necessary to necessary to terexamples are supra , supra OHN J ,

: judges to exercise, consciously consciously judges to exercise, judgments are not without jus- without not are judgments Ipse Dixit Ipse Reasoning HEORY OF THE USTICE T J

Reasoning : n, only a few coun or common sense, which may also entail entail also may which sense, common or Where different interpretive approaches approaches interpretive different Where ipse dixit ATE HIEF HIEF ] (acknowledging thatlist of interpretive his 48 F Ipse Dixit The judge decides simply by choosing one one choosing by simply decides judge The C ATE F Ipse Dixit REAT G cessante legis praemio, cessat et ipsa lex lex ipsa et cessat praemio, legis cessante HE interpretation permits interpretation T

Like Philip Bobbitt, I acknowledge that there may be be may there that acknowledge I Bobbitt, Philip Like is unreasoned decision making, second-order second-order making, decision unreasoned is ONSTITUTIONAL ONSTITUTIONAL 46 C

, but these seem to be the main ones. The Justices freely de- freely The Justices ones. main the be to seem but these OBSON

ONSTITUTIONAL 47 H C

, F. ipse dixit Ipse Dixit OBBITT B

Originalism and Second-Order Second-Order and Originalism OBBITT note 28, at 350. The context makes clear that Story thinks the Latin maxim applies maxim makes clear thinks the Latin that Story context The350. at 28, note HARLES HARLES HILIP Originalism and Second-Order Second-Order and Originalism C P

Telman, Telman, See See supra supra

, The Justices of the Marshall Court engaged in nine well-recognized interpretive interpretive well-recognized in nine engaged Court Marshall the of The Justices 1. and Second-Order First Impression Cases of If first-order first-order If to approach A pluralistic We find it laid downof in someour earliestauthorities common in the and law, civilians are expression, aaccustomed similar to code of every exposition the in foundation has a it Probably ceases]. law the for reason the if universalthe fromofwritten law, principle of interpretation, and intentionof will the that and followed. regarded be legislature to the is 46 47 48 Telman, Telman, TORY modalities might not be complete and that it could be that it could supplemented). notand modalities might be complete suggest that their review of original methods is either incomplete or conceptually flawed.While conceptually flawed.While original that their review of is either incomplete or suggest methods change a considered that the Framers evidence provides Joseph Story clear-cut, is not the example in circumstances as grounds for ignoring a statute’s commands: S B [hereinafter The address is empirical, claim it fully and I cannot in this space. Because McGinnis and Rappaport say theyfind no evidence of constructio 1164 1164 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM additional modalities, additional

modalities: textualism, intentionalism, structuralism, purposivism (teleology), and and (teleology), purposivism structuralism, intentionalism, textualism, modalities: logic, morals, history, precedent, to appeals pragmatic considerations. pragmatic ployed whichever interpretive modality struck them as fitting for the case. They case. They for as fitting the struck them modality interpretive whichever ployed the same outcome, supporting all as modalities interpretive combined frequently but onefrom see can the arguments of counseland from responsespolitical the in coalesce. always not did modalities interpretive the that press Second-Order C. to the Constitution, which suggests an endorsement of something like constitutionalism. living something of endorsement an suggests which the Constitution, to See constitutional adjudication. Second-order Second-order adjudication. constitutional tification, but they aredecisions madeat a crossroadthe arguments where in favor valid. equally are or another of one path Justices the Court, Marshall of the opinions In the options. viable equally of two them alternatives waived or ignored and path chosen their of correctness the asserted incredulity. with away involves an unreasoned choice between or among equally valid interpretive options. options. interpretive valid equally among or between choice unreasoned an involves a of consensus among the Framers, clear Jus- or evidence precedent either Lacking to second-order had recourse often Court early tices the of or unconsciously, considerable discretion. considerable or unconsciously, 42938-lcb_24-4 Sheet No. 19 Side B 02/02/2021 10:18:46 B 02/02/2021 19 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 20 Side A 02/02/2021 10:18:46

See See

. 145, . 145, judg- , supra 52 Arguing Arguing .” According According 50 OMMENT ipse dixit C decided

Originalism . ONST Baude, See er, Baude concedes “a certain , 33 C 167 (1991). 167 (1991). ]. the rules and in deciding whether to apply deciding whetherrules to apply and in the

thus can be hard to identify,and it can take NTERPRETATION methods by announcing as the ground for for as the ground announcing by methods I cases had broad discretion to determinewhat the law

49 ipse dixit Ipse dixit

Arguing About the Constitution the About Arguing at 2360. Jack Balkin maintains that lawyers and judges who at 2352 (describing an “inclusive” originalism thatrecognizes “the interpretation decision”). or Moreov Id. ONSTITUTIONAL C

, See id.See Ipse Dixit Ipse note 45,752 at (introducing their conclusion that living constitutionalism Bobbitt agrees. In difficult cases, Bobbitt acknowledges that in- that acknowledges cases, Bobbitt In difficult agrees. Bobbitt 51 supra OBBITT , as other things. things. as other B

HILLIP 34 (1996) (arguing that Marshall learned froma Virginia his time as practitioner “that P Id. Id. John McGinnis and Michael Rappaport do not explain how“originaltheir methods” ipse dixit 2. Varieties of 2. Varieties Because case law now significantly hems in judges’ discretion, discretion, judges’ in hems now significantly law case Because Judges never reveal their their reveal Judges never just actually are they when intentions Framers’ the invoke sometimes Judges AW 50 51 52 49 L M K

note 8, at 2353 (contrasting his organization of interpretive methods with the “flat” organization and constitutional construction were among the original not methods, but that ambiguity and intent). and purpose, structure, history, of evidence by considering be resolved could vagueness William Baude recognizes a hierarchy with originalism at the top. to Bobbitt, Learned Hand’s advice was, “Damn it, Henry, just decide it! That’s what what That’s it! decide just Henry, it, “Damn was, advice Hand’s Learned to Bobbitt, for.” paid you’re judges in the ordinary course of deciding were to choosewas, from compelled as they a variety of sources”). OF 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1165 MARSHALL'S 2020] with accords that approach the choose judge may the results, different to can lead this To to the dispute. parties to the or fairness practicality, ofher own sense justice, that modalities interpretive of hierarchy no articulated have originalists even day, discretion. judicial cabin could Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

terpretive modalities do not constrain the judge. “The case must be must case “The the judge. constrain do not modalities terpretive their decision: “Because I say so.” Moreover, because judges want their reasoning to to reasoning their want judges because Moreover, so.” say I “Because decision: their to volunteer are unlikely they realms, normative other than in rather law sound in disguise judges Instead, analysis. legal in their them guide that reasons non-legal the their amount of [judicial] discretion both in articulating offered under pluralist theories). However, Baude’s is an inclusive originalism, embracing multiple interpretive modalities. them in a particular case.” Original Methods Original “embrace multiple interpretive theories” may “adopt a hierarchical ordering,” but he does not seem to think such a hierarchy is necessary, nor does he say what it is. Jack M. Balkin, About the Constitution: The Topicsin Constitutional Interpretation originalism resolves issues when different interpretive modalities lead to contradictory results. results. contradictory to lead modalities interpretive different when issues resolves originalism 217 (2018) [hereinafter Balkin, Balkin, [hereinafter (2018) 217 ments are less common today, or at least, harder to identify. Still, they are not un- are not they Still, identify. to harder or at least, common today, ments are less sought who Friendly Judge a troubled of a story relates Bobbitt Philip of. heard case. a difficult resolve to on how Hand Learned Judge from counsel many forms. many forms. validity of other methods of C Y 42938-lcb_24-4 Sheet No. 20 Side A 02/02/2021 10:18:46 A 02/02/2021 20 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 20 Side B 02/02/2021 10:18:46

M K &

C Y HIEF HIEF J.L. C

. Justices Justices HE ARV 55 T

: can look like like look can 36 36 H Because most Because most (Max Farrand ed., ”

, 57 EPUBLIC note 40, at573. R 1787 ipse dixit supra ARLY , E (calling appeals the Framers (calling to

In most cases, when nine- cases, In when most 54 Pre “Originalism hunches. hunches. (1995)

Reasoning ONVENTION OF scholarly edition of the proceedings proceedings the of edition scholarly C their own memories or on accounts or on accounts own memories their 231 OURT IN THE ipse dixit C Another form of of form Another Ipse Dixit EDERAL EDERAL 53 F LLSWORTH note 12, at 234. at 12, note t actuallyparticipate in the Framing, or to Framers who UPREME UPREME E S supra HE LIVER T

pronouncements. Justices in the Early Republic would would Republic Early in the Justices pronouncements. O , note 54, at 310. 310. at 54, note ECORDS OF THEECORDS R ASTO C supra supra

AY AND HE J T R.

ipse dixit 1 Lorianne Updike Toler & J. Carl Cecere, Cecere, Carl J. & Updike Toler Lorianne

OHN J Originalism and Second-Order Second-Order and Originalism ILLIAM at 304–05 (finding that less than 10% of citations to historical materials reference W id. 277, 308–09 (2012) (concluding that in its first 100 years, the Supreme Court Court Supreme the years, 100 first its in that (concluding (2012) 277, 308–09

Y ’ Early Justices drew on their own recollections of the founding events, but but events, of the founding recollections on their own drew Justices Early Toler & Cecere, Cecere, & Toler See generally See Telman, Telman, See OL 56 In the early Court, appeals to the Framers frequently served as both a prelude prelude a as both served frequently the Framers to appeals Court, early In the The early Court’s failure to researchintentions theof the Framers is unsurpris- P

55 56 57 53 54 . UB USTICESHIPS OF rarely referenced documents from the period beginning with the convening of the of the the convening with beginning period from the documents rarely referenced in Rights of the Bill of ratification through the 1787 in Convention Constitutional 1791. and a disguise for for a and disguise they but Framers, the of intentions the discern to wanted they that state frequently texts. to Framing-era references specific rarely made textualism. A judge can provide a dispositive textual interpretation while ignoring ignoring while interpretation textual dispositive a provide can judge A textualism. plausibil- similar of interpretation textual rival a of significance the or downplaying readings, textual with in tension can exist interpretations teleological ity. Moreover, and Marshallfavor the availed Court to itself Justices enabling the of thus both, on based approaches or teleological textual twenty-first-century originalists are more concerned with original public meaning meaning with public original are more concerned originalists twenty-first-century the to not relate documents important the more intent, original are with than they J P 1166 1166 century, nineteenth In the early Framers. the to interpretation own their ascribing or the Convention at the Constitutional debates of the records reliable when no on relied judges existed, assemblies ratification intention. to establish ofdebates those REVIEW LAW & CLARK LEWIS 24.4 [Vol. or Convention or the Constitutional the Framers invoked Justices teenth-century Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

1911). 1911). specifically referenced individual Framers only 21 times, and most of those refer to influential people era who from the Framing did no capacity). their personal in wrote Paul consider the Earlymaterials of the you the Framing). period from on, Brest noted that “if evolution . of doctrinesin just about any extensively-adjudicated. area of constitutional law . those recollections were by no means always in accord. accord. in always means no by were those recollections “a literary device”); the ratification conventions, they would not specify a Framer, a part of the Consti- the of part a a Framer, specify not would they conventions, the ratification state. particular a of convention ratification or the Convention, tutional explicit reliance on originalist sources has played a very small role compared to the elaboration of Brest, precedents.” own the Court’s ing, given that the source materials that make originalism possible today were not not were today possible that originalism materials make the source ing, given that first judges. The nineteenth-century to available of the Constitutional Convention did not appear until 1911. until appear not did Convention of the Constitutional 42938-lcb_24-4 Sheet No. 20 Side B 02/02/2021 10:18:46 B 02/02/2021 20 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 21 Side A 02/02/2021 10:18:46

. ” , The IGHTS IGHTS OLUM R C

(calling the 91 1787–1788

While the the While , , 64 ILL OF B ECORD FROM THE THE FROM ECORD R Even today, the doc- the Even today, 58 ONSTITUTION C

states); H. Jefferson Powell, . 1513, 1533 (1987) 1533 . 1513, 59 OCUMENTARY EV TRUGGLE FOR THE FOR TRUGGLE te” in the Senate winnowed that the S D R

EBATE THE THE EBATE HE . T D

HI : C Marshall, and the Politics of Constitutional

EOPLE IGHTS ts to apply to the P R , 54 , 54 U. HE ADISON AND THE

Correcting Search-and-Seizure History: Now-Forgotten T common-law Michael standards); Anthony Lawrence,

: M 63 ILL OF B note 54,note at 302–03 that (finding roughly 60% of the Court’s . 1, 9 (2007) (noting that the legislative. 1, does not history clarify 9 (noting (2007) AMES AMES J

EV , R

supra supra L.

. ATIFICATION (Helen E. Veit et al. eds., 1991). E. 1991). (Helen et Veit eds., al. O R . 1203,1221 (2003) (noting that John Marshall derived “the Framers’

, The Search for the Truth in Constitutional Criminal Procedure Criminal in Constitutional Truth the for The Search ABUNSKI

REATING THE EV L We know almost nothing of the state deliberations concerning concerning deliberations the state of nothing almost We know R C

AIER 62 , 72 M However, the congressional debates leave many fundamental issues fundamental many leave debates congressional the However, L.

xiii–iv (describing the way Federalists conspired to create a one-sided record of ONGRESS through the nineteenth century, the Court rarely sought after or after or rarely sought the Court century, nineteenth through the M . (noting that “little is known about the deba

A ., Thomas Y. Davies, Davies, Y. Thomas ., C 65 Moreover, the final text was the product of a committee that kept no kept no that a committee of product the was text final the Moreover, at 61 ICHARD ICHARD R Cecere, & Toler Tom Stacy, Tom Christopher L. Eisgruber, Marbury Eisgruber, L. Christopher L.J. 1, 155 (2007) (observing that the legislative history does not clarify whether “due whether “due clarify not does history the legislative that (observing (2007) 1, 155 L.J. (2006) AULINE , 89 V

. See See See See See See id. See See generally e.g See, P EDERAL . 1369, 1424 (1991) (citing multiple authorities). authorities). multiple (citing (1991) 1424 . 1369, F The record of deliberations relating to the Bill of Rights is also problematic. problematic. also is Rights of Bill the to relating deliberations of record The when intentions the Framers’ invoke sometimes Court Justices in the Marshall ISS 237 62 63 64 65 59 60 61 58

EV R M K

IRST IRST

intent from his theory of constitutional purposes, not the other way around”). around”). way not the other purposes, constitutional of his theory intent from Bill of Rights down from seventeen Amendments to twelve because “the Senate met behind closed closed behind met Senate “the because twelve to Amendments seventeen from down Rights of Bill doors until 1794, and thus of their therecord discussion is sparse”). 77 M Common-Law Warrantless Arrest Standards and the Original Understanding of “Due Process of Law of Process “Due of Understanding Original the and Standards Arrest Warrantless Common-Law umentary record relating to ratification is incomplete. is to ratification relating umentary record The first Congress discussed the Amendments, so we know something of the issues issues the of something we know so Amendments, the discussed Congress The first up for debate. Framers. to the interpretation their own just ascribing actually they are unresolved. Modern Misunderstanding of Original Intent Original of Misunderstanding Modern whether Congress intendedfor the Bill of Righ 235, L. F ratification, two edited(2010) of scholarship consisted on the best previous which (discussing of ratification the to chapters which separate devoted 1989 but 1988 and collections that appeared in missed each state and thus in the story). part of process 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1167 MARSHALL'S 2020] drafting of the Constitutionin Philadelphia, buttoits ratification in the several The first comprehen- better. no states is in the ratification of the record States. But in 2010. published was ratification of account sive scholarly Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM in constitutional Framers the of intentions the invokes frequently Court Supreme adjudication, the adoption of the Bill of Rights. of Bill of the adoption the minutes of its proceedings and of a vote in the Senate, whose deliberations were were deliberations whose Senate, in the vote a of and its proceedings of minutes design. by secret the ratification debates that favored their perspective). their perspective). debates that favored the ratification legislative history of the Bill of Rights “exceptionally unreliable”). process” was intended to incorporate and Immunities or Privileges Amendment Fourteenth the Through Incorporation Amendment Second Due Process Clauses Judgment C Y 42938-lcb_24-4 Sheet No. 21 Side A 02/02/2021 10:18:46 A 02/02/2021 21 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 21 Side B 02/02/2021 10:18:46 M K HE

C Y ipse ipse ipse T 67

, NJUST U OURT AND C RIEDMAN F reasoning pre- reasoning at the political political the at AITH IN AN AN IN AITH F UPREME UPREME ARRY

S 69 ipse dixit OLITICAL P

: ing history, precedent, prudential prudential precedent, ing history,

judges in ways in ways th judges NFLUENCED THE I poorly reasoned judicial opinions. judicial reasoned poorly AS AS EDEMPTION faith interpretation which exerts its own own its exerts which interpretation faith H R in a pejorative sense, nor do I think I do nor sense, pejorative a in (2009). PINION PINION

O ipse dixit 66 Balkin’s version of originalism requires fidelity to to fidelity requires originalism of version Balkin’s reasoning is not opposed to originalism or living con- living or originalism to opposed not is reasoning note 17, at 29517, note (explaining at thatto the Constitution fidelity 68 ONSTITUTION decisions are not arbitrary decisions. Judges are con- are Judges decisions. arbitrary not are decisions UBLIC ONSTITUTIONAL C P C supra

, , OW ipse dixit H

: ipse dixit ALKIN as a Descriptive, Not a Normative Term Term Not a Normative a Descriptive, as B

Abortion 303 (concluding, upon closer inspection, that the Justices may have been doing doing been may have the Justices that closer inspection, upon (concluding, 303 M.

EOPLE reasoning is neither originalist nor living constitutionalist reasoning. reasoning. reasoning constitutionalist originalist nor living is neither EANING OF THE P at M ACK J id. Balkin,

Ipse Dixit Ipse 103–04 (2011) (arguing that fidelity to the text is the entire point of interpretation and and interpretation of point entire the is text the to fidelity that (arguing (2011) 103–04 On the influence of public opinion on the Court, see generally B See See See reasoning. During the Early Republic, second-order second-order Republic, the Early During reasoning. reasoning is inconsistent with Balkin’s idea of constitutional fidelity. Moreo- fidelity. of constitutional idea Balkin’s with inconsistent is reasoning I do not intend the phrase phrase the intend not I do In addition, Jack Balkin has argued persuasively that judges are bound by by bound are judges that persuasively argued has Balkin Jack addition, In 3. Second-order ipse dixit 67 68 69 66 ILL OF THE ORLD HAPED THE THE HAPED constitutional principles but not to the Framers’ original expectations regarding how how regarding expectations original Framers’ the to not but principles constitutional situations. in specific applied be would text the constitutional means fidelity the words and to their underlying principles, but not to original intended or expected applications). something other than actually relying on the intention of the of Constitution’s the intention creators). on than actually other relying something

W S W statements regarding its own interpretive method in cases of constitutional first impression are best described as intentionalist). 1168 1168 intentions. those on based ruled REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM Equally importantly, importantly, Equally second-order in engage both non-originalists and Originalists stitutionalism. ver, dixit dixit arguing that judges and lawyers,whether or not they understand themselves as originalists, adhere constitutionalto fidelity). constraining pull on judges. on pull constraining something akin to a fiduciary duty of good duty a fiduciary to akin something strained through the usual mechanisms includ mechanisms usual through the strained considerations, logic, and common sense. Our common law legal culture entails entails culture legal law Our common sense. and common logic, considerations, This holding. the to leads that reasoning legal the of elaboration judicial extensive tradition of discursive constrains rationality branches are not constrained. Legislation may be the product of horse-trading and and of horse-trading product the be Legislation may constrained. not are branches absent scan- and, discretion considerable officers exercise Executive deals. back room deci- their even or inaction, or actions their explain not need investigation, and dal by must justify contrast, their Judges, do they rulings, and processes. sion-making disputes legal of arbiters impartial and apolitical as reputations not want their a to or reasoning of interest, conflicts partisanship, of political by aspersions tainted to challenge empowered and judges journalists, Politicians, result. pre-ordained or partisan will scorn and precedent ridicule dominated because so many constitutional cases raised issues of first impression on originalism/non-originalism the situations, such In divided. were Framers the which dixit dixit 42938-lcb_24-4 Sheet No. 21 Side B 02/02/2021 10:18:46 B 02/02/2021 21 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 22 Side A 02/02/2021 10:18:46

: . 71 EV In IRST IRST R

72 F L. RADLEY RADLEY

ERNARD . B HE xi (1996) (1996) xi 71,2–3 at T RECEDENT

: INN P AMES AMES note note 72, at 614 A Critical Guide Guide Critical A ATION it certainly was OURT N , 90 M , 90 C 74 supra ITHOUT ITHOUT supra supra ,

, W

, UPREME AUL S P note 3, at 39 (contending note 3, at that ARSHALL EFINER OF A M D (listing among Marshall’s enduring

: ] (citing “its relative unimportance” as supra

, ICHARD ICHARD OHN R J

, Originalist Dilemma Originalist William W. Van Alstyne, Alstyne, W. Van William OLFE

(1993)

OEL ARSHALL at 2 (calling John Marshall’s great decisions decisions great Marshall’s John (calling 2 at While the Court’s authority was not was not authority the Court’s While J M 33 MITH 75

S id. , establishedpowerful itself “as a institution among see also OHN ONSTITUTION IN THE OURT OURT J

C (“None of the founding generation of American leaders leaders American of generation founding the of (“None ,

C 70 see also Originalist Dilemma see, e.g.

HE ]; T MITH

, S (1901) (rating Marshall in the field of constitutional law UPREME 1 (2018) 1

S 3 (1985) that (noting the early Court had a small load case and

note 71,3 (crediting Marshall at withhaving conceived “virtually URRIE 57 ARSHALL TheMarshall Court and the Originalist Dilemma IMES DWARD M T E P. C P. IS IS supra supra , note 54,247; at H

OHN EAN J

AVID ARSHALL 73 , 1789–1888 AUL

, P supra M note 12. ISTORY OF THE OF ISTORY

, D , , H

MITH e.g. EARS Peter J. Smith, Smith, Peter J. A Marbury v. Madison,(1 5 Cranch) U.S. 138, 177 emphatically (1803) (“It is the

Y , OHN ASTO J

See See See, ARSHALL AND AND ARSHALL See, e.g. See, III. JOHN MARSHALL: ESTABLISHING THE RULE OF LAW LAW OF RULE THE ESTABLISHING MARSHALL: JOHN III. , C See supra See Joseph Story suggested that Marshall’sepitaph shouldbe, the expounderlies “[h]ere of M Marshall’saccomplishments are especially surprisingthe given federal judici- John Marshall’s Constitution is, to a remarkable extent, our Constitution. our extent, is, to a remarkable Constitution John Marshall’s 75 73 74 70 71 72 M K UNDRED UNDRED HAYER CHWARTZ OHN courts; the establishment of federal jurisdiction over suits against suits jurisdiction narrow federal stateover of and the the establishment officers; courts; in federal suit court). from States’ immunity construction of

of a dormant Commerce Clause; the advent of the Supreme Court’s authority to review state state to review authority Court’s the Supreme of the advent Clause; Commerce dormant a of the Court in the eighteenth century had not had not century eighteenth in the the Court Smith, branches”); separated government’s the federal contributions doctrine: notion Clause; to Proper a broad the constructionNecessary and the of the Constitution.” J the Constitution.” second”). one no with “preëminent,—first, Twenty-first century courts continue to follow his bold, sweeping judgments. bold, sweeping follow his to continue courts Twenty-first century John Marshall joined When of century. eighteenth the ary’s end insignificance at the institution; well-regarded was not a it 1801, in Court the Supreme

province and duty of the judicial department to say what the law is.”). law the judicial say what department of and to is.”). duty the province H (saying of the pre-Marshallits “authority Court, was vague and its caseload was light”); B S T [hereinafter S [hereinafter J Constitution American than the Marshall”); John impact on J had a greater 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1169 MARSHALL'S 2020] work. explanatory little does divide Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM not co-equal with the political branches. with the political not co-equal the pre-Marshall Court’s outstanding characteristic); the pre-Marshall Court’s “the ABCs of American constitutional“the ABCs of law”); 612, 614–15 (2006) [hereinafter Smith, Smith, [hereinafter (2006) 614–15 612, the first that during (observing issues were the newdecade of generally republic, constitutional rather than in the courts). branchesaddressed in the political addition to his doctrinal rulings, he also established the federal judiciary as a co- as judiciary federal the established also he rulings, doctrinal his to addition “to say authority Court’s the Supreme established and government of branch equal is.” law what the every foundational doctrine of constitutionallaw has that guided States the for United two centuries.”); that its “modest record” tends to get overlooked); W C Y 42938-lcb_24-4 Sheet No. 22 Side A 02/02/2021 10:18:46 A 02/02/2021 22 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 22 Side B 02/02/2021 10:18:46

, M K

in 78 82 48 id. C Y , ]; note note

ERIATIM S supra ISTORY ISTORY supra

, , (noting that H

ERIATIM S

OLFE URRIE C SSENTIAL SSENTIAL

E N see also see also A

: (1919). (1919). Numerous leading states- Numerous leading

81 60 (1998) [hereinafter (1998) OURT

1787–1801 viii (1986)

C 6 , note 71, at 55. at 71, note undoubtedly contributed to the the to contributed undoubtedly 80 Before 1801, the federal courts ad- courts the federal 1801, Before

OURT ARSHALL supra 76

, C M UPREME UPREME ARSHALL S M

HE OHN HAYER J T

at 326–27. at EDERAL ., OHN F J Id. 1, 2 (1969) (invoking the 1805 impeachment of Justice Justice of 1805 impeachment the (invoking 2 (1969) 1,

HE IFE OF OF IFE T L

L.J. , Introduction: The Supreme Court Before John Marshall John Before Court The Supreme Introduction: EFORE EFORE HE B T UKE

, note 77, 258note at (suggesting that Justice Thomas Johnson likely OFFER ET AL H OURT OURT

ANKEVICH C supra supra L 79

The institution was so little considered that the designers of of the designers that considered little so was The institution , J. 77 EVERIDGE note 70, at 377–78 (describing the Court’s fifth courtroom since Marshall HARLES HARLES B

C J. at 34 (describing at a letter in which President Washington invited both Charles UPREME UPREME 2–3 (naming Charles Pinckney, Alexander Hamilton, and Patrick Henry among

S EORGE EORGE supra supra at 3 (noting that the Court’s first Washington, D.C. home was in the basement of basement of was in the home D.C. first Washington, Court’s that the (noting at 3 id. at x (naming John Jay and John Rutlege as having left the bench to serve in state , G ETER ETER

ANKEVICH HE 1 L

P LBERT LBERT

Scott Douglas Gerber, Gerber, Douglas Scott T

AUL A :

See See id. id. See 83 See See id. See 3 P See (finding just over 40 cases reported between 1790 and 1801); 1801); and 1790 between reported 40 cases over just (finding

The requirement that Justices ride circuit, which involved unpleasant and even even and unpleasant involved which circuit, ride Justices that The requirement note 80, at note 83 78 81 79 82 80 77 76 Marburyv. Madison, 1969 D ERIATIM at 6, 22 sources n.17 the (citing on difficulties riding). circuit of himself was injured Marshall he was result, a As Richmond. from Washington to way his on overturned stagecoach his when T 1812 term. absent Court’s at the start of the governments); governments); those whodeclined and John Rutledge and John Jay among those who resigned). the courts “disposed of” an additional 18 cases). British Capitol). burned After the Washingtonthe U.S. in the War of 1812, Congress did not “hold and themselves” for to “fend the Justices leaving chamber, Court’s the Supreme rebuild Pinckney and Edward Rutledge to the and join Court observing that both declined); and the Marshall Court held proceedings in five different buildings, including some some including different buildings, in five proceedings Court held and the Marshall settings. very humble Morris Gouverneur courts in 1801, circuit 16 new of the creation In defending as Supreme men out seek should President the them, without that out pointed a of “learning the than rather a postboy” of agility “the with Court nominees judge.” difficultyof recruiting qualified people to theposition. men of the 1790s declined appointment to the Court, and several Justices resigned resigned Justices several and the Court, to appointment declined 1790s the men of government. in state positions prestigious more and safer accept to the Court from

74,3–58 at (discussing, on average, about one decision of the pre-Marshall Court per year, supra S to Samuel Chase and calling the Court “a most fragile institution”). (2007) 1170 1170 exercised. frequently it was neither challenged, REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM resigned from the Court in January 1793 in order to escape the obligation to ride circuit). the new capital city gave no thought to creating athe Supreme Court, building for creating to no thought gave city the new capital hearings in the home of the court clerk.” clerk.” the court of in the home hearings 3, at 39 (stating that the pre-Marshall Court decided only four important constitutional3, four only that the at 39 decided pre-Marshall (stating cases). Court judicated 61 cases. 61 judicated dangerous carriage journeys on unreliable roads, unreliable on journeys carriage dangerous suggesting that about a dozen of those had cases constitutional ramifications); W became Justice, “a cramped, oddly Chief shaped triangular room” located under the U.S. Capitol building “in an obscure corner of the basement”). 42938-lcb_24-4 Sheet No. 22 Side B 02/02/2021 10:18:46 B 02/02/2021 22 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 23 Side A 02/02/2021 10:18:46

, : 85 see see (“The (“The

UDICIAL ADISON seriatim J M The Mar- 89 John Marshall, Marshall, John Stuart v. Laird Soon after John John after Soon EGACY OF OF EGACY 86 note 40, at 579; 579; at 40, note L Act’s merits but merits also Act’s

. 289, 291 (2003) 291 . 289, supra , ARBURY VERSUS EV at 27. 27. at R

M Id. L.

RIGINS AND in . . Charles F. Hobson, judiciary into a brake on the the on brake a into judiciary O 84 Reasoning ASH HE W T

. : Marbury see also see also EO Marbury, ]; of the Chief Justice on the Court’s judg- Court’s the on Justice Chief the of Marshall’s habit of writing the majority majority the writing of habit Marshall’s Ipse Dixit

(describing the Judiciary 88

ADISON , the Court exercised its power to invalidate invalidate to its power exercised , the Court , 72 G (Mark A. Gerber & Michael Perhac eds., 2002) M ARBURY

. 87

26 , 90 84, at 58. 58. at 84,

at 302–03 at 17,

The Politics of note ELSON an interpreter of the Constitution seems both obvious obvious both seems Constitution the of interpreter an ARBURY V . 893, 893 (1978). (1978). 893 . 893, M

, EV supra The Eighteenth-Century Background of John Marshall’s Constitutional note 80,20. at , R

note 71, L.

. supra ELSON

OMMENTARY , Marbury v. Madison v. Marbury N supra supra C

ICH ARBURY

, E. M Originalism and Second-Order Second-Order and Originalism

, ERIATIM MITH , 76 M , 76 note 71, at 236 his (“During thirty-four years as chief justice, Marshall personally JamesO’Fallon, M. S S

ILLIAM ELSON 57 (2000) [hereinafter N [hereinafter (2000) 57 See See Telman, William E. Nelson,

W See N See supra supra In the ugly transition from John Adams’s Federalist administration to Jefferso- administration Federalist Adams’s John from transition In the ugly John Marshall very quickly transformed many aspects of the Court. He re- He the Court. aspects of many quickly transformed John Marshall very Marshall’s authority as Marshall’s authority , 88 89 90 84 85 87 86 M K OCUMENTSAND EVIEW EVIEW AUL

P wrote 547 opinions. Of these, 511were unanimous.”). judiciary’s prospects were not auspicious in 1801.”). 1801.”). in auspicious were not prospects judiciary’s Once in power, the Republicans introduced a countermeasure, passing the Judiciary Judiciary passing the countermeasure, a introduced the Republicans power, Once in 1801. of Act Judiciary Federalists’ the repealed which 1802, Act of the Mandamus Case andJudiciary the Crisis (describing how the Republican Congress eliminated the June 1802 and the Court of sitting reduced its annual sittings from two, in June and December, to one in February). Congress’s in 1802 Act of the Judiciary upheld Court The Supreme justified. were not worries R D nian Republicanism, warring factions treated the judiciary as their political play- political their as judiciary the treated factions warring Republicanism, nian the transform to attempted Federalists the 1800, of election the lost Having thing. inconsequential” somewhat and “meager hitherto federal one the to addition In is. law the what say to authority its asserted Court shall in invalidated law occasions. at on 14 laws least state acknowledging that it was rightly seen as a partisan measure that enabled the outgoing President, Federalists).John withbench devoted to stock the Adams, federal after days five decided (1803), 299 Cranch) (1 5 U.S. 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1171 MARSHALL'S 2020] imprimatur the put himself opinions the of Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM Justice. Chief its and the Court of both prestige the enhancing ments,

Marshall was appointed Chief Justice in 1801, the newly-elected Republican Con- Republican the newly-elected 1801, in Justice Chief appointed was Marshall the cancelling legislatively Act by that overturning from his Court gress prevented 1802. for scheduled Court’s sittings placed the Court’s tradition of having the Justices deliver their opinions their opinions deliver Justices the of having tradition the Court’s placed cases. most in opinions unanimous with Jurisprudence Republican movement for sweeping political change. The lame-duck Federalist Federalist lame-duck The change. political sweeping for movement Republican Congress passed the Judiciary Act of 1801, which expanded the judiciary and ena- and the judiciary expanded which 1801, Act of the Judiciary passed Congress posts. judicial newly-established to Federalists name to Adams President bled C Y 42938-lcb_24-4 Sheet No. 23 Side A 02/02/2021 10:18:46 A 02/02/2021 23 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 23 Side B 02/02/2021 10:18:46

M K

C Y The The DWARD 97 estab-

98 ipse dixit G. note 40, at 571– 40, at note see also n.143 (1991) (calling

supra , 459

note 70, at 54–55. 70, at note reasoning in the eighteenth- in reasoning supra

decidedthat only “the court had , Reasoning 93 1815–1835

. 162, 179 (1827); (1827); 179 162, . 84, at 59 (stressing the extent to which which to the extent (stressing at 59 84, ,

His influence is bewildering be- bewildering is influence His ipse dixit ipse dixit HAYER EV 91 Marbury R

note Ipse Dixit Q. HANGE the Court in the early nineteenth century).

. C M supra , , 1 A , 1 , for example, Justice Marshall proclaimed in in proclaimed Marshall Justice example, , for (stating that (stating

84, at 70.

ULTURAL ARBURY C M

, note supra ELSON , note 70,77 at OURT AND N C supra Originalism and Second-Order Second-Order and Originalism

Kent on American Law American on Kent ARBURY , In so doing, as Bill Nelson haspointed out, the Courtacted “stra- see also see also Marbury v. Madison Marbury v. 94 M

, ARSHALL HAYER In and then refused to enforce the law on jurisdictional grounds. jurisdictional on law the enforce to refused then and notes 103–18. M Telman, Telman, at 777; at 70. 95 96 T

Nonetheless, during Marshall’s Chief Justiceship the Court came to be be to came Court the Justiceship Chief Marshall’s during Nonetheless, ELSON HE However, the Court wisely chose not to exercise that power against the the against power that exercise to not chose wisely the Court However, 92 Thayer credits Marshall’s introduction of unanimous opinions as having given “the Infra See See T See Id. Id. N Id. 99

Kent, James , Non-hierarchical interpretive pluralism and resorting to second-order to second-order resorting and pluralism interpretive Non-hierarchical In the city of Washington there exists a power, visible only two or three months in the year; a power without arms, without soldiers, without treasure; whoseonly weapon is the moral force of reason and truth, and yetwhose to decisions the whole country submissively bows. This power is the venerable Bench of the Supreme Court of the United States. 97 98 95 96 91 92 93 94 99 HITE no jurisdiction to do what they were asked to do in that case”). do do asked to jurisdiction were what to no they result, “a judgment acceptable both to the [P]resident and to Congress,” to and the [P]resident to both acceptable “a judgment result, W dictum: “the Court’s authority to enforce the law, lectured the [P]resident for vio- for the [P]resident lectured law, the enforce to authority Court’s “the dictum: it,” lating seen as a unique protector of the Constitution and the Republic, at least by some. by some. at least Republic, and the the Constitution of protector a unique seen as this view: illustrates 1827 from A commentary 78 (discussing interpretive pluralism and second-order the Justices of the Marshall Court achieved their goals by distinguishing between the domains of domains the between distinguishing by goals their achieved Court Marshall the of the Justices law and politics). 1172 1172 revolutionary in a participant as because obvious, is authority His and bewildering. au- provide to positioned well was Marshall debates, ratification in the and events the of Constitution. interpretations thoritative REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

The Supreme Court achieved this reputation during the Marshall era because most most because era Marshall during the reputation this achieved Court The Supreme Court the of members although that persuaded were Americans politically-engaged might have their partisan opinions, in its constitutional rulings the Court looked only to the law. cause the Marshall era dawned as the sun set on the fortunes of his Federalist party. party. Federalist his of fortunes on the sun set as the dawned era Marshall the cause such commentary characteristic of characteristic such commentary the writings on lished the Court’s power, including lished power, including its the political power to Court’s inthe the check branches future. tegically.” judicial department a unity like that of the executive.” T the executive.” judicial that of department a unity like century Supreme Court). Court). Supreme century decision-making characterized the Marshall Court as they did its predecessor predecessor its did as they Court the Marshall characterized decision-making Courts. 42938-lcb_24-4 Sheet No. 23 Side B 02/02/2021 10:18:46 B 02/02/2021 23 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 24 Side A 02/02/2021 10:18:46

100 OURT C , it was a ISTORICAL ISTORICAL ’s audacity audacity ’s H remaining remaining coup 106 UPREME UPREME S Marbury , he did so in a self- in so , he did EGAL AND He saw his first mil- first his He saw L 104 TS I If it a was If it GE OF THE

: A 102 Marbury

.” 108 EVIEW In EROIC EROIC R At the age of 32, Marshall, now now Marshall, 32, of age the At coup H 101 109

s nationalist perspective on the Consti- on the perspective nationalist s As a member of Washington’sa of As member Conti- UDICIAL UDICIAL J

105 Part III. C. 84, at 63. 63. at 84,

84, at 41–42. 41–42. at 84,

ARSHALL AND THE OCTRINE OF M note note D see infra see Bill Nelson contends that this wartime experience was HE OHN 103, at 39. 39. 103, at 107

reasoning that enabled him to interpret the Constitution Constitution the interpret to him enabled that reasoning J supra

T supra

, , , , 9 (1963). 9 (1963). note

. art. III, § 2, cl. 1 (limiting the1 .2, cl. art. courts’ III, jurisdiction § to enumerated cases Marshall joined the revolution in 1775 as a newly-commis- a as 1775 in revolution the joined Marshall 103 ORWIN ARBURY ARBURY EWMYER supra supra SSAYS

ipse dixit C ONST ,

M E N

M C

S. , ENT ENT THER U.S. at 2–3. 2–3. at 3–4. at K at 21–22. 21–22. at at 29.

ELSON DWIN O ELSON EWMYER Id. Id. Id. See See E R. Id. Id. N N N By the following year, Marshall was both a practicing attorney in Richmond Richmond in attorney a practicing both was year, Marshall following By the As one of his biographers puts it, John Marshall was “most assuredly” a “child “child a assuredly” “most was Marshall John it, puts biographers his of one As Although Marshall regarded the law as something apart from politics, he none- politics, from apart something as law the regarded Marshall Although 103 104 105 106 107 108 109 100 101 102 M K ASIS AND

1 (2001). 1 (2001). important in three ways: it made Marshall a committed nationalist, a protégé of of a protégé nationalist, a committed Marshall it made ways: in three important of consensus. a shaper and a leader and Washington, nental line, Marshall rose to the rank of captain and served as a deputy judge advo- judge as a deputy served and captain rank of to the rose Marshall nental line, staff. Washington’s attached to incate the Pennsylvania Captain Marshall fought Forge, in Valley winter the following endured and in 1777 campaign

B and controversies). For and controversies). examples, sioned, 19 year-old Lieutenant in the Culpeper minutemen. in the Culpeper Lieutenant year-old 19 sioned, 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1173 MARSHALL'S 2020] Congress. Republican-dominated or the State, of his Secretary sitting President, Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM a military man until 1781. man until a military conscious effort to strengthen the Court and the judicial branch. judicial the and the Court strengthen to effort conscious partisan “deliberate a as it describe to Corwin led of Delegates. of Virginia’s House and a member subtle one. Marshall’s ruling did nothing to revive his flagging party. party. flagging his revive to nothing did ruling one. Marshall’s subtle A. Partisan and as Framer Marshall revolution.” the of theless used the law to achieve political ends. Regularly, Marshall’s interpretive interpretive Marshall’s Regularly, ends. political to achieve the law used theless method entailed bench the on allies Federalist his and ends, Marshall both of service In the tution. those decide to and Court the before issues get to rules procedural manipulated case or controversy. aof clear absence issues in the in good faith but also in accordance with hi with in accordance also but faith in good itary action in December of that year, taking on British regulars outside of Norfolk Norfolk of outside regulars British on taking year, that of December in action itary Henry. Patrick Colonel of orders on the C Y 42938-lcb_24-4 Sheet No. 24 Side A 02/02/2021 10:18:46 A 02/02/2021 24 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 24 Side B 02/02/2021 10:18:46

M K 117 C Y 191

Once Once in which in 111 note 71, at supra supra , Virginia Herald Virginia note 103, at 124 (noting (noting 124 at 103, note despite the declining He spokeon behalf of 71, (proclaiming that at 90

AUL 114 112 2 (clarifying that eighteenth- supra supra

, at note

Marshall’s service in the House House inservice the Marshall’s see also supra (discussing (discussing Marshall’s defending role

, 115

EWMYER At Washington’s urging, Marshall At Washington’s 47 N note 93,

affair, culminating in his characterization of 113 rd preserving the federal government against federal government the rd preserving HAYER See See 48.

T supra President Adams showed his appreciation appreciation his showed Adams President 46. 46. ,

116 HITE at 55. see also also see note 84, at W Id.

note 84, at supra note 84, at 84, note supra , , 180–81 (quoting Marshall’s letter to the the to letter Marshall’s (quoting 180–81

became, in James Madison’s estimation, the fifth most most fifth the estimation, Madison’s in James became, supra , 110 note 84, at 1; 1; at 84, note One possible explanation for Marshall’s influence notwith- influence for Marshall’s explanation possible One note 103, at 112. ARBURY ARBURY note 70, at 104–05 (describing Marshall’s defense of the Jay Treaty). Treaty). the Jay of defense Marshall’s (describing 104–05 at 70, note 119 M

, supra note 71, at , ARBURY supra supra ,

109 (describing Marshall as assuming “the leadershipthe of Federalists of , M

supra supra

, , at 51at (describing Marshall “strongly as federal”). at supra supra at 50 (noting the impressive competition given the composition of the Virginia the of the composition given competition the impressive 50 (noting at ELSON at 106, at 109 (discussing Marshall’s role in organizing a pro-administration rally in ELSON , N AUL N

EWMYER ELSON EVERIDGE AUL See See See N B See id. See id. See id. See id. See N P 118 If Marshall’s revolutionary credentials enhanced his authority, his nationalist nationalist his authority, his enhanced credentials revolutionary If Marshall’s 116 117 118 119 110 111 112 113 114 115 by appointing Marshall of of Secretary and, daysfour Secretary War later, State. century nationalism was “oriented primarily towa Marshall’s “great service to the country . . . was that of planting the national government the the national planting wason that of government . . . the country to service Marshall’s “great broadest and strongest foundations”); Marshall was in that position only nine months before Adams appointed him Chief Adams Marshall beforeonly nine in months position was that Justice. the policies that were most offensive to the Jeffersonian Republicans, including the the including Republicans, the Jeffersonian to offensive most were that the policies Treaty. the Jay in culminating policy foreign Virginia”); P Virginia”); Convention). This estimation is a bit hard to credit, as Marshall made only three relatively short debate. of days the 25 during speeches (detailing Marshall’s arguments in the Nash/Robbins relations). foreign States of United organ” the “sole as the President 1174 1174 a committed Federalist, REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

credentials should have undermined it. As Albert Beveridge put it, “American na- “American it, put Beveridge Albert As it. undermined have should credentials the it of fostering the and conception great only and one Marshall’s was tionalism ofRepresentatives was short-lived, it cemented his but relationship President with defended. he positions whose Adams, the Constitution went into effect, Marshall became one of the leading defenders of of defenders leading the of one became Marshall effect, into went the Constitution legislature. Virginia in the administration Washington the President Adams’ position in the Nash/Robbins affair); that Marshall won the election by 108 votes). 108 votes). by election the that Marshall won ran for and narrowly won election to Congress in 1799, to Congress election won narrowly and forran influential delegate at the Virginia constitutional ratification convention. ratification constitutional the Virginia at delegate influential Sedi- and Alien the of unpopularity the and administration Adams the of fortunes opposed. weakly rather Marshall Acts, which tion response to a visit to Richmond by Edmond-Charles Genet, the new French minister to the the French minister to new the Genet, Edmond-Charles by Richmond to a visit to response United States, and his efforts defending the Jay Treaty in the Virginia legislature). standing his partyaffiliation is that was he well liked across the political spectrum. purpose of his life.” of his purpose he stated that, had he been in Congress, he would have opposed the Alien and Sedition Acts not not Acts Sedition and Alien the opposed have he would Congress, in been he had that, he stated “useless”). were Amendment but First because they the they violated because 42938-lcb_24-4 Sheet No. 24 Side B 02/02/2021 10:18:46 B 02/02/2021 24 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 25 Side A 02/02/2021 10:18:46 ). ). See See See id. id. See 592–93 592–93

122 PEECHES PEECHES S Id. Their enmity is is enmity Their essing his love for for love his essing Marbury v. Madison Marbury 592–93 (William W. n that political activity 126 AND , During the campaignDuring the 120 PEECHES PEECHES S AND , er of support, prof er of support, ORRESPONDENCE Such distinctions seemed to matter matter to seemed Such distinctions C 41–71 (describing Marshall’smoderation in

123 ,

IFE L publicanism: “the propositio

: In part, Marshall’s appeal was a product of his of his a product was appeal Marshall’s In part, ENRY ORRESPONDENCE Patrick Henry, whom Marshall had opposed in opposed had Marshall Patrickwhom Henry, note 84, at C 184 n.5 (quoting n.5 Patrick Henry184 (quoting from Letter Archibald to H 124

, 121 pose Jefferson’s election to the Presidency. IFE supra L ,

note 103, at 146–209 (chronicling numerous stand-offs between between stand-offs numerous (chronicling 146–209 103, at note : ATRICK note 103, at 109. note 71, at ENRY supra supra 1 P

, H Marbury in

, supra supra

93, at 51–5293, (summarizing at the additional traditions that the Marshall Court supra supra ,

, at 126–27, n.81 Letter (quoting from Archibald Patrick Henry to Blair (Jan. 8, ELSON ATRICK EWMYER AUL note N

P N at 126. 126. at at 51. The at Republican enthusiasm for Marshall seems to have as its proximate had

EWMYER 1 P 125 See See Id. See See N Id. id. See supra in , Marshall’s republican charms were lost on Jefferson himself, who set out to to out set who himself, Jefferson on lost were charms republican Marshall’s Marshall was a Federalist whom a Republican could love. Bill Nelson explains explains Nelson Bill love. could a Republican whom a Federalist was Marshall (noting three modifications of classical re

123 124 125 126 120 121 122 HITE M K traditions, including liberalism, natural law, the common law, and American exceptionalism. W

that he was a moderate, in the line of Washington and Adams and opposed to Ham- to and opposed Adams and Washington of line in the moderate, a was he that Party. Federalist the wing of ilton’s radical Henry ed., Charles Scribner & Sons 1891)). Marshall’s version of republicanism requires further further requires republicanism of version Marshall’s 1891)). Sons & Scribner Charles ed., Henry elucidation. Marshall’s jurisprudence fused classical republicanism intellectual with other personality. He was charming and gracious by all accounts. Patrick Henry rushed rushed Henry Patrick accounts. by all gracious and charming He was personality. to not only ofMarshall’s defense because his to service countryhis but of because in- and “talents unquestioned his and disposition and temper pleasant” “always his tegrity.” through which Marshall won election to Congress, he was the subject of personal personal of the subject he was electionthrough Congress, which to Marshall won aristocrat.” a “closet as attacks the Virginia ratification convention, wrote a lett a wrote convention, ratification the Virginia was when Marshall Nonetheless, of 1800. campaign presidential in the nasty little fif- all of support enthusiastic “the with confirmed was he Justice, Chief appointed Republicans.” teen Jeffersonian Marshall based on his actions “as a Republican, [and] as an American.” an as [and] a Republican, “as actions his on based Marshall fused with republican ideology). Marshall adjusted the mixture in light of cultural change. change. cultural light of in mixture the Marshall adjusted ideology). republican with fused at 49 Marshall and Jefferson and highlighting the personalthe enmity between two Virginians). eradicate “the spirit of Marshallism” from the Supreme Court. Supreme the from Marshallism” of spirit “the eradicate

cause Marshall’s decision not to op Blair (Jan. 8, 1799), centrifugal encroachments, and only secondarily toward expanding national power”). 1799), 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1175 MARSHALL'S 2020] he that fact the despite 1795 in Delegates of House Virginia to the elected He was candidate. another endorsed instead and run not did Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM negotiating the crises brought about by the election of 1800 and leading to should be nonpartisan and reflecthierarchical social relationships, the proposition that economic should activity simultaneously and the commerce, protect and be rights to property responsive proposition that republican institutions were time”). to decay with expected (William W. Henry ed., Charles Scribner & Sons 1891)). & Sons Scribner Charles(William ed., W. Henry C Y 42938-lcb_24-4 Sheet No. 25 Side A 02/02/2021 10:18:46 A 02/02/2021 25 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 25 Side B 02/02/2021 10:18:46 M K C Y Cohens see also see also of deciding every deciding of Still, Marshall’s Marshall’s Still, 130 forts to build a consensus In the face “admonitions” of that islation inflicted a wound on the on the a wound inflicted islation and must be capableand must be 131

1) (“[T]he judicial power of every well1) (“[T]he every power judicial constituted of (describing Marshall’s ability to win over theJustices

were effective, in large part due of force large part in to his effective, were established judicial review, while also setting the the setting also while review, judicial established (acknowledging that Marshall’s ef

133 128 Marshall again invoked the law/politics distinction distinction law/politics the invoked again Marshall 132 298–99, 307 298–99,

71, at 3 at 71,

Marbury Marbury 93,73. at until the rise of Jacksonian democracy. of Jacksonian rise until the

note 129 note note 71, at supra supra

, supra , at 438 (“This listen at only department can to the mandates of law; and can tread supra supra at 176 (“At the core of [Jefferson and Marshall’s] dispute lay the unexplored terrain terrain unexplored the lay dispute Marshall’s] and [Jefferson of core the (“At 176 at , MITH Craig v. Missouri, 29 U.S. (4 Pet.) 410, 437 (1830) (“In the argument, we have been been have we argument, the (“In (1830) 437 410, Pet.) (4 U.S. 29 Missouri, v. Craig S Marshall’s efforts to build consensus on the Court in “an effort to conceal to conceal effort “an in Court on the consensus Marshall’s build to efforts HITE AUL 127 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 818 (1824); States,818 (1824); the United 738, of 22 (9 Wheat.) Bank U.S. v. Osborn See id. See See id. See W P See Marshall’s world view and his political views are best evidenced in his opinions opinions in his evidenced best are views political and his view world Marshall’s The Marshall Court demanded equal dignity for the federal judiciary, asserting asserting judiciary, federal the for dignity equal demanded Court Marshall The 131 132 133 127 128 129 130 character and charm, and character the exercise of federal jurisdiction over state leg state over jurisdiction federal of the exercise states, sovereign of dignity whom Jefferson and Madisonwhom to Jefferson had appointed oppose him). and to keep the judiciary above the political fray were less successful during the Jackson successful less the Jackson during were political fray the judiciary above keep the and to Jefferson’s). during been they had than administration most significant contributions to constitutional interpretation endured, in terms of in terms of endured, interpretation to constitutional most significant contributions co- a as judiciary federal the of status the review, of judicial nature and scope the provisions. constitutional key of meaning and the of government, branch equal

v. Virginia, 19 (6 Wheat.) U.S. 264, 384 (182 384 264, 19 (6 Virginia, Wheat.) U.S. v. legislature, must the be with government co-extensive judicial question which grows out of the constitution and laws.”). reminded by one side of the dignity of a sovereign state; of the humiliation of her submitting this tribunal; the dangers which of to inflicting may resultherself from a wound on that .”). . . . dignity by duty.”). marked out is that path which only 1176 1176 administra- Jefferson’s between conflicts originalism: of problems the of emblematic disagree- fundamental players’ major turned on the Court and the Marshall tion had it polity the of nature the and Constitution the of meaning the to ments as created. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM upholding popular sovereignty over compact theory, property rights, and the prin- the and rights, property theory, over compact sovereignty popular upholding review. of judicial ciple and grimly noted that courts have no choice but to exercise jurisdiction when the the when jurisdiction exercise to but no choice have courts that noted grimly and mandate. a legal is do so to duty cultural cultural andtensions divisions” of republican law itself . . . . The Constitution, rather than settling the matter, had, since had, the matter, settling rather than Constitution, The . . . . itself law republican of the debate.”). of focus become the ratification, B. Federalism The and Distinction, Courts, Law/Politics the judicial federal permitting and of government branch as a co-equal its own status principle political great the embodied III Article Marshall, For law. state of review gov- well-constituted every of powers, judicial and executive, legislative, “the that . . . .” other each with co-extensive are ernment, 42938-lcb_24-4 Sheet No. 25 Side B 02/02/2021 10:18:46 B 02/02/2021 25 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 26 Side A 02/02/2021 10:18:46

As As , and , and 138 also set Marbury precursor to precursor a McCulloch , In law, a judge judge a law, In Marbury as

137

134 as embodying the view the view embodying as Marbury ). Marbury exercise of will, modern which Marbury , “Courts are the mere instruments instruments are the mere , “Courts (viewing

(discussing

Dartmouth College 79

judgment from an and

note 84, at 84, note note 84, at 3–4 at 84, note note 84, at 63. 63. at 84, note Chris Eisgruber describes Marshall as having created as created having Chris describes Marshall Eisgruber the mandamus order he sought “could have ended at at ended have “could sought he order mandamus the supra supra , , 139 Fletcher v. Peck note 103, at 378 (arguing that Marshall’s aim was to “make the supra 93, 197 at (noting that “the [Marshall] Court was clearly making note 64, at 1229 note 64, at (noting that Marshall’s law/politics distinction

, note 64, at 1205. 1205. at 64, note supra supra ARBURY ARBURY supra

note , M M

, , ARBURY supra M supra

, Marshall’s Court strove to do so in a way that was not overtly parti- overtly was not way that a in do so strove to Marshall’s Court , He thus intended to distinguish law from politics. from law distinguish to He thus intended

EWMYER ELSON Osborn v. Bank of the United theof States v. Bank Osborn ELSON 140 But Nelson also acknowledges that Marshall was engaged in a political political a in engaged was Marshall that acknowledges also Nelson But N 136 N Marbury v. Madison, 5 U.S. (1 138, Cranch) 170 (1803) (stating that a citizen may N 135 Eisgruber, Eisgruber, HITE ELSON 141 See See (1824). 866 738, Wheat.) (9 U.S. 22 States, United the of Bank v. Osborn Eisgruber, N See See See See ); W And yet, Marshall’s apolitical approach to judging was hemmed in on all sides all sides on in hemmed was judging to approach apolitical yet, Marshall’s And Marshall endeavoredpresentto his decisions as straightforwardapplications of 137 138 139 140 134 135 136 141 M K

that only sovereign entities in existence). apply decide only could laws sovereign could that only while policy, courts san and contributed to the image of the Court as an institution that simply said said simply that as an institution the Court of to the image san and contributed was. law what the Marshall’s takings decisions in out Marshall’s view of the Court’s limited powers of judicial review. The Court The Court review. of judicial powers limited Court’s the of view out Marshall’s order ex- could courts federal and decisions, legislative of legality the review could political decide not would Court the but functions, perform their officers to ecutive questions. exercises and of andarguments discretion modalities among chooses legal doctrines, policy. on based conclusions legal not reach does the judge but interpretation,

assert legal rights against the executive but that the will courts never entertain “[q]uestions, in their nature[,] political”). assumes an ability to distinguish an exercise of a “distinctly judicial form of politics”—that is, one that requires judges to make judges to make requires is, one that apolitics”—thatform “distinctly judicial of “controversial judgments publicly about contested of questions and justice the common good.” Court first and foremost a legal institution,” a prominent theme in skeptically). view readers might 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1177 MARSHALL'S 2020] Mar- Marshall treated because followed, decisions that law stage for the property right. property a vested as Peace the of Justice as position bury’s Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM he put it in in it put he calculus. Granting Marbury Marbury Granting calculus. as an effort to avoid embroiling “the Court in a political rather than a purely legal legal purely a than rather a political in Court “the embroiling avoid to effort an as matter.” political decisions, but it presented these decisions in the official, purportedly neutral, language of the law”). by political considerations. Bill Nelson understands Marshall’s approach in Marshall’s understands Nelson Bill by considerations. political legal rules. legal Cohens of the law, and can will nothing. When they are said to exercise a discretion, it is a a is it a discretion, to exercise said are they When nothing. will can and law, of the mere legal discretion . . .” . C Y 42938-lcb_24-4 Sheet No. 26 Side A 02/02/2021 10:18:46 A 02/02/2021 26 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 26 Side B 02/02/2021 10:18:46

M K 147 C Y and and

151 Marbury v. scholars put put scholars Stuart v. Laird Laird v. Stuart Marbury

Those principles were the the were principles Those at 190 (characterizing the Burr 149 id.

As two two As McCulloch v. Maryland v. McCulloch 150 The dynamic in 142 143

Court’s order and at worst with Congress’s Congress’s with at worst and order Court’s 146 John Marshall’s Selective Use of History in at 188 at (describing Marshall’s opinion discrediting the id. ); 403 (characterizing the ratification of the Constitution in

note 103, at 165 (emphasizing rule of law themes and reliance note 84, at 69. at 84, note . 301, 336 (1986). 336 . 301, supra supra supra The Justices might not have survived the conflict with the

, he also read the Eleventh Amendment narrowly to permit permit to narrowly Amendment Eleventh read the , he also , EV He denounced the “[p]owerful and ingenious minds” that that minds” ingenious and “[p]owerful the denounced He 145 R

by rejecting compact theory and, by implication, the legal doc- the legal by implication, and, theory compact by rejecting

148 , 17 U.S. at L.

. 152 ARBURY Cohens EWMYER ISC M

Marbury v. Madison v. Marbury N , The Federalist-dominated Court upheld the Republican Congress’s Congress’s Republican the Court upheld The Federalist-dominated

In , at 309 (finding “no words in the constitution to prohibit or Congressrestrain” , 19 U.S. at 264. 264. at U.S. , 19 144 153

bedrock of Marshall’s constitutional jurisprudence, and he applied them them applied he and jurisprudence, constitutional Marshall’s bedrock of ELSON 1986 W 1986 -like lecture” directed at Jefferson on the rule of law); law); of the rule on Jefferson at directed lecture” -like

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 380 (1821). (1821). 380 264, Wheat.) (6 19 U.S. Virginia, v. Cohens (1824). 222 1, Wheat.) (9 22 U.S. Ogden, v. Gibbons Id. (1819). 316 Wheat.) (4 17 U.S. Maryland, v. McCulloch Cohens McCulloch See Id. Susan L. Bloch & Maeva Marcus, 299 (1803). Cranch) 5 U.S. (1 Laird, v. Stuart id. See N e.g. See, Marshall put thismethodology into action in Marshall strategically deployed Blackstone and invoked the common law in in law the common and invokedMarshall deployed Blackstone strategically 147 148 149 150 151 152 153 142 143 144 145 146 Marbury Jeffersonians had they ruled otherwise. ruled they had Jeffersonians Wilkinson affidavit in the cases of Bollman and Swartwout, Burr’s alleged co-conspirators, as a “ trial as the “climax Marshall’s make constitutional to to battle decade-long with Jefferson theinterpretation business judges of and lawyers, politicians”). not on Blackstone in trines (the Virginia (nullification) documents and and that Kentucky Resolutions) it spawned. Judiciary Act of Act of 1802. Judiciary from reforming the judiciary as was done in the Judiciary Act of 1802). Act of in the Judiciary as wasdone the judiciary reforming from But his opinions included bald, unapologetic statements of Marshall’s partisan view view partisan Marshall’s of statements unapologetic bald, included opinions his But a and firm “aform that “cannot [u]nion,” union close of to the Framers’ intention their all “disappoint would which and whole” the for a government without exist hopes, unless invested large with portions of sovereignty that which belongs to in- [s]tates.” dependent 1178 1178 obey refusal the Madison’s best with to . . . .” John Marshall of Chief Justice impeachment REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

it, “[a]lthough Marshall claimed to be eliminating political questions from review review from questions political to be eliminating claimed Marshall it, “[a]lthough determine to power Court the critical the for he assumed in reality by the Court, law.” which were and political which issues were ipse dixit examined.” to be arguments the of as “tests in cases promoted, with “refined and metaphysical reasoning,” state sovereignty and thus thus and sovereignty state reasoning,” metaphysical and “refined with promoted, principles.” fundamental and “safe to as doubt induced Cohens v. Virginia was similar. order to bolster his claim that he stood for nothing other than the rule of law. of rule than the other for nothing he stood that his claim bolster order to Madison, 42938-lcb_24-4 Sheet No. 26 Side B 02/02/2021 10:18:46 B 02/02/2021 26 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 27 Side A 02/02/2021 10:18:46

157 another Willson v. EFFERSON J commenced and 140, 141 (Paul (Paul 140, 141 HOMAS HOMAS T , holding that the the that , holding EFFERSON reduced the Constitution reduced , 19 U.S. at 381 (observing J and stressed and priority the 154 Gibbons v. Ogden v. Ogden Gibbons Cohens HOMAS HARACTER OF OF HARACTER T McCulloch C All of these rulings are still good good still are rulings these of All He further narrowed the scope of of scope the narrowed further He HE 159 T

155 : RITINGS OF

PHINX

ggle involving Marshall, Story, and the Jeffersonian W S

10 atures, “adopted the present constitution”).atures, “adopted the present , 134 U.S. 1, 21 (1890) (barring suit in federal court court federal in suit (barring (1890) 21 1, U.S. , 134

, 156 MERICAN (“These States are constituent parts of the United States. They They States. the United of parts constituent are States (“These

note 93, at 517. This dictum somehow escaped the Court’s 517.This escaped the 93, at somehow dictum note Osborn Osborn v. ofBank the United States A

, estimate of Marshall as a man of “profound hypocrisy”); Thomas supra LLIS

, E to bar states from regulating in areas in which Congress is empowered

note 93, at 427–84 (discussing the development of the Court’s the Court’s of the development 93, (discussing at 427–84 note J. Marshallto accuse the law of to manipulating his serve own Hans v. Louisiana v. Hans HITE 160 supra W

, , 19 U.S. at 414 OSEPH see , J HITE at 611 (noting that the Court, in its early Contract Clause cases, seemed to assume at 485–86(describing Marshall’s inclination in the latter by analogy to takings law. to takings analogy by the latter at 411–12 (finding that the Eleventh Amendment applied only to suits Amendment applied to only that the Eleventh at 411–12(finding W Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 857 (1824) (“[T]he 11th 11th (“[T]he (1824) 857 738, Wheat.) (9 U.S., 22 U.S. the of Bank v. Osborn 158 Letter to Judge Spencer Roane Id. at 412; 412; at See id. See id. See e.g. See, See Cohens See See See

Id. Marshall’s Jeffersonian adversaries could occasionally pounce on inconsisten- on pounce occasionally adversariesMarshall’s could Jeffersonian Marshall and Story teamed up to construct an expansive view of the federal federal of the view an expansive construct to up teamed and Story Marshall 158 159 160 155 156 157 154 M K

law and many are taken as self-evident today, although they were by they although today, no means as clear are taken self-evident many and law them. decided Court when the Marshall the Eleventh Amendment in in Amendment the Eleventh Eleventh Amendment barred only suits in which the state itself (not one of its offic- its of one (not itself state which the in suits only barred Amendment Eleventh notice when it decided brought by a citizen raising a federal question against her own state). 175 (1997) (quoting Jefferson’s The Marshall Court construed the Commerce Clause and the Contracts Clause to Clause to the Contracts and Clause the Commerce construed The Marshall Court commerce the dormant became what of aid the with former the powers, state negate doctrine, Black-bird Creek Marsh Co. Co. Marsh Creek Black-bird act). to

by citizen against a a state, a category into which an appeal criminal prosecution from a did not fit). In the alternative, Marshall noted that the were Cohens citizens of Virginia and thus did not bar on suits brought Amendment’s against Eleventh come withinby the a state citizens of state. suits against over States, constitution by granted the jurisdiction the restrains which amendment, record.”). the which suits a State is a party on in those necessity, limited to is, of a “general back legislature principle or a that B could and then it to A not take property give from itself”). to assemblies convenience); matter of mere several of the states as a 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1179 MARSHALL'S 2020] federalincourts, criminalconvictions challenges state to Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM cies in his opinions his in cies Leicester Ford ed., 1899) (saying that Marshall’s opinion in ers or subdivisions)a party. was of the national character of the federal union. federal the of character national of the Jefferson, Jefferson, jurisprudence of admiralty jurisdiction as a stru Justice William Johnson). courts’ admiralty jurisdiction, favoring uniformity over state sovereignty and setting and setting sovereignty over state favoring uniformity courts’ jurisdiction, admiralty powers. Clause Commerce of understanding expansive Marshall’s for the stage that “the American people,” not state legisl are members of one great empire—for some purposes sovereign, for some purposes subordinate.”). C Y 42938-lcb_24-4 Sheet No. 27 Side A 02/02/2021 10:18:46 A 02/02/2021 27 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 27 Side B 02/02/2021 10:18:46

. M K T C Y C

. Mar- 1631– See also Cohens UP EPUBLIC S , 25 U.S.

with HE HE 163 ADISON , 31 J. M 361 (1768). 361 (1768). 3 T in “generally positive”); AMES J se of the Court’s appellate Court’s appellate se of the NGLAND for years, denouncing the E Ogden v. Saunders v. Ogden Marbury Nineteenth-century judges judges Nineteenth-century , 17, U.S. Wheat.) (4 122 (1819), AWS OF 164 Marbury Marbury L EFFERSON AND AND EFFERSON J hall’s “sophistry” and “twistifications”). HOMAS HOMAS (allowing for the exerci (allowing for the T shrod Washington relatinglatter’s to the opinion in and the Republican press had to mute its its criti- to mute had press Republican and the

Sturges v. Crowninshield v. Sturges ETWEEN ETWEEN at 253–66 at (discussing Marshall’s dogmatic embrace of opinion but renounced it in the trial of Aaron Burr, which B 162 OMMENTARIES ON THE id. C

, 71,260 at (calling public reaction to Bollman

communications with attorneys. In one example that out- that one example In attorneys. with communications since Jefferson had “won”). note

LACKSTONE B However, to a remarkable extent, Marshall shielded his and the the and his shielded Marshall extent, remarkable a to However, ORRESPONDENCE ORRESPONDENCE ex parte supra Marbury v. Madison, 5 U.S. (1 Cranch) 138,174 (1803) (ruling that Congress note 103, at 188–89 (noting that Marshall had embraced the English doctrine doctrine the English embraced had that Marshall (noting 188–89 at 103, note C , 161 , 10 F. Cas. 542 (C.C.D. Pa. 1814) (No. 5,509)). 5,509)). (No. 1814) Pa. (C.C.D. 542 Cas. F. , 10 Marbury note 162,115(observing at that neither press publicly the nor the President HE AUL ILLIAM T

P supra supra : Letter from Thomas Jefferson James Madison to (May 25, 1810),

, supra See See 3 W Compare See to private correspondence, private to Marshall’s distinction between law and politics must be understood in the con- in the understood be politicsand must law between distinction Marshall’s . 109, 115 (2006). 115 . 109, 163 164 162 161 ETTERS L IST EWMYER and in his correspondence with Justice Bu and in his correspondence with Justice Golden v. Prince ThomasJefferson and JohnMarshall: What Kind of Constitution Shall Have? We Court’s opinions from political challenge by presenting them as resolving legal ra- legal as resolving them presenting by challenge political from opinions Court’s on commentary negative his restricted Jefferson conflicts. political ther than bury cisms of that decision because the ultimate judgment favored Jefferson. favored judgment the ultimate because decision that of cisms (12 Wheat.) 213 (1827), dissent and contrasting that opinion with the more flexible approach he that opinion flexible he 213 contrasting more approach (12 (1827), and with dissent the Wheat.) had taken in previous opinions, such as Lockean natural in his contract of Lockean freedom law to relating doctrine could not give the Court appellate jurisdiction where give appellatecould jurisdiction not Constitution the Court made it original, the could nor it create original jurisdiction where the Constitution created appellate jurisdiction), case); the government’s doomed 32 (James Morton Smith ed., 1995) (denouncingMars H Urofsky, on commented jurisdiction where the Constitution provided expressly only for original jurisdiction). jurisdiction). original for only expressly provided Constitution where the jurisdiction N of constructive treason in his and a “perversion of the law” 1823letter in an to Justice William Johnson. Melvin I. Urofsky, to a “mere thing of wax in the hands of the judiciary, which they may twist and shape into twist and shape into any which they may the judiciary, of the hands wax in of thing “mere a to they please”). form 1180 1180 ends. political REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

v. Virginia, 19 U.S. (6 Wheat.) 264, 393 (1821) OF C. C. Procedure of Manipulation and of Interest Conflicts also indulged in indulged also Burr’s in bail his Aaron and just after supporters, Marshall had set raged Jefferson afrom Burr’s attorney, invitation dinner treason accepted Marshall at trial $10,000, Jefferson still was able workhimself to lather into a over decision to Abigail Adams in 1804as an act of judicial despotism, and calling it “very censurable” text of his times. In the early nineteenth century, judges frequently sat in judgment in judgment sat frequently judges century, nineteenth early In the times. of his text of cases in which they had an interest. Members of Marshall the Court likely shared Blackstone’s assessment that “the law will not suppose a possibility of bias or favour authority whose and justice, impartial to administer sworn already is who a judge, in idea.” and presumption that upon depends greatly 42938-lcb_24-4 Sheet No. 27 Side B 02/02/2021 10:18:46 B 02/02/2021 27 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 28 Side A 02/02/2021 10:18:46

HE HE He AMES J

EFENSE 3 T 172 , 154 , 154 U. in D 167 IOGRAPHY IOGRAPHY S ’ a case in- a case B note 93, at

McCulloch v. A 171

, : supra The Marshall Marshall The , he did not cross ARSHALL 166 ATION M 168 EFFERSON AND HITE J N OHN EW J

N in HOMAS HOMAS , T While Marshall’sactions made land” claimed by “a syndicate of which 165 ETWEEN ETWEEN Martin v. Hunter’s Lessee v. Hunter’s Martin B (criticizing Marshall’s opinion in

who was also James Marshall’s father-in- EFFERSON AND THE 169 J 166 (explaining166 that the “principal question in the case Roane’s “Hampden” Essays

Defining the Office: John Marshall as Chief Justice Chief as Marshall John Office: the Defining at

HOMAS Justice Roane] Justice titles to a large tract of tract a large titles to T

ORRESPONDENCE , note 103, at 292 (describing Marshall as Morris’s “chief legal legal “chief Morris’s as Marshall 292 (describing 103, at note 109 (Gerald Gunther ed., Stanford Univ. Press 1969) (1819) (1819) 1969) Press Univ. Stanford ed., Gunther (Gerald 109 C EFENSE EFENSE HE note 93, T D supra supra

S ETERSON : , ’ Spencer Roane, Roane, Spencer ARYLAND note 93, at 198. 198. at 93, note P

supra

);

M ,

. D. Charles F. Hobson, supra

, ETTERS , HITE EWMYER L ARSHALL N W M at 778. at

at 218. 218. at HITE ERRILL . 1421, that the Marshall Court was 1439 (2006) periodic (noting subject to attacks , 1776–1826, at 1631 (James Morton Smith ed., 1995) (criticizing Marshall’s opinion opinion Marshall’s (criticizing 1995) ed., Smith Morton (James 1631 at , 1776–1826, ). See See Id. W (1816); 304 Wheat.) (1 U.S. 14 Lessee, Hunter’s v. Martin See M W Id. e.g. See, V ULLOCH EV Marshall drafted the writ of error in of error writ the drafted Marshall C R

1. Interests in Property Marshall’s Cases to combined fortune personal his and to federalism to Marshall’s commitment By modern standards, John Marshall did not exercise judicial restraint. He in- restraint. He judicial exercise not Marshall did John standards, By modern C 170 168 169 170 171 172 165 166 167 L. M

Cohens v. Virginia v. Cohens . M K ADISON EPUBLIC OF A

in some question his judgment, such conduct did not undermine the Court’s legiti- the Court’s not undermine did such conduct his judgment, some question princi- “immutable on based cases decide to understood were judges because macy .” . . . values subjective own their to reference by not and ples inform rulings in speculators, includingof favor land himself, brother James, his Morris, Robert client, former and his clear ethical lines, and his conduct did not undermine the Court’s authority. authority. Court’s the not undermine did conduct and his lines, ethical clear law. [hereinafter stitutionalized judicialembraced opportunities review, and that en- he to take cases ex- Marshall reach. judicial federal and expand questions policy settle him to abled ploited distinction the law/politics while manipulating his for docket Court’s which the time, of culture legal with the consistent were actions His ends. political and learning men of as status their to attached that a deference judges accorded him, attacked adversaries political Marshall’s Although probity. John Marshall and his brother James Marshall were members”). members”). were Marshall James brother his and Marshall John originally concerned the validity of the validity originally concerned Maryland 866–67 (1970). (1970). 866–67 P R M 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1181 MARSHALL'S 2020] dinner. the attended John Wickham. also Burr Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

OF representative in Virginia, arguing [Morris’s] cases in both state and federal courts”). from Jeffersonians); Letter from Thomas Jefferson James Madison to (May 25, 1810), volving disputed title to a parcel of land in which Marshall had an interest. an had Marshall which in land of parcel a to title disputed volving Court’s contemporariesrecognized “a respectableintellectual” distinction between discretion. legal and individual between the difference and politics and law 167–68. 167–68. C Y 42938-lcb_24-4 Sheet No. 28 Side A 02/02/2021 10:18:46 A 02/02/2021 28 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 28 Side B 02/02/2021 10:18:46

, M K C Y , which , which

178 Landmark Cases Cases Landmark Fletcher v. Peck Marshall’s opin- Marshall’s Fletcher v. Peck Fletcher 176 Martin v. Hunter’s Lessee Lessee v. Hunter’s Martin One biographer’s conclu- biographer’s One Alex McBride, 177 (1805). (1805).

, Newmyer ponders whether Marshall Marshall whether ponders , Newmyer see also also see Cranch) 1 Marshall ruled on behalf of land spec- of land on ruled Marshall behalf

174 , ). ). in order to rationalizein order and privatize theland market” U.S.

Fletcher v. Peck Fletcher sums up the problem with respect to Marshall’s Marshall’s respect to with sums up the problem , https://www.thirteen.org/wnet/supremecourt/capitalism/ , https://www.thirteen.org/wnet/supremecourt/capitalism/ was a far more momentous case, involving Georgia’s sale sale Georgia’s involving case, momentous more far a was Gibbons v. Ogden v. Gibbons HIRTEEN

put money in his pocket, but rather that thespeculative T note 103, at 232. note 103, at 218. 10 U.S. (6 Cranch) 87 (1810); (1810); Cranch) 87 (6 U.S. 10 But there was nothing unusual in Marshall’s behavior by the by behavior Marshall’s in unusual was nothing But there

180

, note 71, (narrating the facts relevantnote to at 300–01 , and , and 179 supra supra supra supra

, , supra supra at 223. Huidekoper’s Lessee , at 312 (noting Marshall’sat suppression of troublesome in facts Id. at 165–70 (describing the highly unusual process whereby process at 165–70 unusual the highly (describing AUL Huidekoper’s Lessee v. Douglass Fletcher v. Peck P

at 220–21. at In connection with EWMYER EWMYER 175 N Id. id. See See See id. See Huidekoper’s Lessee v. Douglass, 7 N Fletcher Peck, v. In Although Marshalland hisallies did not stand to gain personallyfrom them, It is difficult to separate Marshall’s aggressive opinion for the speculators from from speculators for the opinion aggressive Marshall’s separate to is difficult It more even the mention to not is this and he was a speculator, that fact the that was not It families. and Marshall the Morris between connection direct Lessee Huidekoper’s resonated. he which with case were those that in prominent so interests 173 177 178 179 180 173 174 175 176 Marshall’s opinions on banks and corporations also seemed overdetermined by his Marshall’s by overdetermined opinions on banks also and corporations seemed policypreferences. Marshall no doubt thoughthimself capableof separating his own and if “he was moved to do so by his long-running war with Virginia over his investment in the Fairfax lands.” landmark_fletcher.html (last visited Dec. 21, 2020). 2020). 21, Dec. (last visited landmark_fletcher.html land decisions: decisions: land ion was “an unqualified victory” for speculators. land victory” ion “an was unqualified implicated the interests and investments “financiers, of judges, and politicians Georgia, from South Carolina, and Pennsylvania,” including Georgia’s U.S. Senator, James Gunn). standards of his own During time. the EarlyRepublic, leading politicians oftenen- liti- the among prominently figured frequently they and speculation, gaged in land gantsleading in cases. of 35 million acres to four land companies for 1.5 cents per acre. per 1.5 cents for companies land four to acres million 35 of McCulloch v. Maryland got onto the Court’s docket). the Court’s onto got playedeasy Framers’ “free with and the intent 1182 1182 the granted Washington Bushrod friend but his the case, from himself recused writ. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

From the perspective of those who would like to see Marshall as the disinterested the disinterested as Marshall to see like who would those of the perspective From defender of the rule of law, it is hard to explain Marshall’s willingnessmentpresented of such cases. He factsas the so make doctrinal to the result seem to sit in judg- Marshall the case undermined have would that facts ignoring often unavoidable, government, federal the property, favoring positions legal for opinions in his made review. and judicial ulators, including the Holland Land Company, whose moving spirit was Robert Robert was spirit moving whose Company, Land Holland the including ulators, Morris. sion regarding Fletcher v. Peck (1810) v. Peck Fletcher 42938-lcb_24-4 Sheet No. 28 Side B 02/02/2021 10:18:46 B 02/02/2021 28 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 29 Side A 02/02/2021 10:18:46 note 71, supra supra , James O’Fallon O’Fallon James

AUL t may not rule on a t may not rule on a Martin v. Hunter’s v. Martin before a federal judge). judge). federal a before Judiciary Act of 1789, ch. 1789, ch. Act of Judiciary

with 183

estions constitutionality the of of “were attuned to the perceived perceived the to attuned “were , Marshall’s, decision establishing al histories of other Marshall Court cases). involved qu involved dern jurists do that a cour United States v. Hylton note 87, at 17. The doctrinal perspective does doctrinal perspective does 17. The 87, at note

, Marshall addressed the threshold issue of of issue threshold the addressed , Marshall on the ground that it “sound[s] from a doctrinal supra at 176–80 that the Constitution (finding does not confer Marbury Dartmouth College College Dartmouth Cohens v. Virginia v. Cohens id. filewrong court. P Marbury’s in the case ), procedural discretion bled into “manipulation proof “manipulation into bled discretion procedural ), , and , and note 103, at 301. note 93, note at 180 such manipulation (discussing in the two named cases note 54, at 102 (discussing the machinations of Alexander Hamilton, Hamilton, Alexander of machinations the 102 (discussing 54, at note Marbury v. Madison v. Marbury the case from his legal treatment of it. However, Marshall’s opin- Marshall’s However, it. of treatment his legal from the case Sturges Similarly, in in Similarly, , supra supra supra supra

Moreover, the Court ultimately held that there was no conflict conflict no was there that held ultimately Court the Moreover, , , , 184 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 375 (1821) (identifying the case case the (identifying (1821) 375 264, Wheat.) (6 U.S. 19 Virginia, v. Cohens 185 HITE ASTO Such manipulation may not have been unusual; the pre-Marshall Court Court pre-Marshall the unusual; been have may not Such manipulation C W has Marbury that (finding (1803) 173 138, Cranch) (1 5 U.S. Madison, v. Marbury Dartmouth College Dartmouth EWMYER In such cases, Marshall’spersonal familial and speculative interestsover- 182 McCulloch Compare N See See See 181 and and 2. Judicial Overreach? Overreach? 2. Judicial on jurisdic- dismissed have that he could issues decided sometimes Marshall For example, in 185 181 182 183 184 M K lines.”

a lower court. a lower cedure.” lapped with his interest in the nationalist policy supporting land speculation. speculation. land supporting policy nationalist the in interest his with lapped ( cases landmark some in At least grounds. procedural or tional Lessee at 258–59. 258–59. at federal appellate jurisdiction over state criminal convictions may have been unnec- been have may convictions criminal state over jurisdiction appellate federal essary. The wording of section 25of the JudiciaryAct of 1789 only created jurisdic- from appealed case Cohens’ the and courts, highest the states’ from appeals over tion

original jurisdiction on the Supreme Court to issue writs of mandamus and that Congressoriginal issue writs to jurisdiction Court mandamus of on the Supreme such its powerexceeded in providing jurisdiction in the Judiciary 1789). Act of as coming from on writ error an of intermediate appellate court), hear appeals from to decisions of jurisdiction Supreme Court the 73 (granting Stat. 25, 1 20, § decisions those states when the of courts high the stated “a plain case for mandamus”); questioned this “standard criticism” of ions in in ions merchants,business- entrepreneurs—manufacturers, of class an emerging needs of men,and bankers—all of whom wereinterested in doing business across state 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1183 MARSHALL'S 2020] in interest personal Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM also created legal fictions in order to control its fictions to incontrol order docket. also legal created jurisdictionlast, deciding crucial the issue of Court’s power to the issue of writs such power in no existed that before determining officers mandamus to executive case. Marbury’s case over which it lacks jurisdiction. perspective” and ignores context. O’Fallon, context. perspective” and ignores not ignore context—Marshall knew as well as mo and noting that we lack documentation on the procedur Joel Richard Paul considers it “most likely” that John and James Marshall conspired with meet the to Hylton Daniel enabled that Revenue of the Commissioner and General, the Attorney amount-in-controversyrequirement and thus get Marbury’s attorney, Charles Lee, to C Y 42938-lcb_24-4 Sheet No. 29 Side A 02/02/2021 10:18:46 A 02/02/2021 29 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 29 Side B 02/02/2021 10:18:46

M K 186 In C Y 189 State banks banks State 190 at 423 (describing 423 (describing at , “Let the end be , “Let the end be see id. see id. In these cases, Marshall Marshall cases, these In 187 McCulloch

188 dge would refuse jurisdiction or would would or jurisdiction refuse would dge Here too, Marshall created a constitutional a constitutional created Marshall Here too, ***** ***** 191 rulings arousing without suspicions theopinions that note 103, at 365 (“[T]he congressional act of 1802, under which which under 1802, of act congressional 365 (“[T]he 103, at note ipse dixit supra supra

, note 93, at 549. 549. at 93, note , 19 U.S. at 445U.S. (finding 19 at , no congressional intent to establisha national lottery). supra , at 353–75 (discussing Marshall’s tendency to decide cases and expand the Court’s expand the Court’s Marshall’sat 353–75 (discussing decide cases and to tendency EWMYER N Cohens

HITE See See id. See 17 421 (1819); U.S. (4 Wheat.) 316, Maryland, v. McCulloch W Id. This Part has endeavored to show that John Marshall elevated the federal judi- federal the elevated Marshall John that show to endeavored has Part This Marshall’s nationalism entailed deference to the legislature, or at least to the to the at least or legislature, to the deference entailed nationalism Marshall’s 186 187 188 189 190 191 chose to read statutes broadly so as to enable him to decide issues of federal jurisdic- federal of issues decide to him enable to as so broadly statutes read to chose re- have would that readings narrow plausible rejected He power. judicial and tion docket. Court’s Supreme the from the cases moved the Cohens claimed the right to sell lottery tickets in Virginia, was clearly limited to the the limited to was clearly tickets in Virginia, lottery sell to right the claimed the Cohens Columbia.”).District of created the newly of governance were not rendered in good faith. faith. good in rendered were not issue where the facts might not have necessitated a confrontation between federal federal between afacts confrontation necessitated have mightissue where the not commerce powersand statepolice powers. and of government branches coordinate the with dignity equal of place a to ciary insisting the so by did that review. He of judicial powers courts’ the established in Marshall at swipes from Apart issues. not policy issues, legal only decided courts so and distinction, accepted this contemporaries press, Marshall’s the Republican de- and procedure he manipulated when motives Marshall’s question not did they modern ju a in which situations in cases cided Marshall also enabled the Court of discretion legal the in This trust recuse herself. andto issue his Court Because there was no federal question at issue, there was no basis for the exercise of of the exercise for basis no was there at issue, question federal no was there Because law. state under a conviction over jurisdiction federal overturning a legislative enactment as a “painful duty” of the court). state or federallaws or authorities). jurisdiction). permitted dismissal want of would have for facts jurisdictional the reach when 1184 1184 law federal the and tickets, lottery of sale the prohibiting law Virginia’s between Columbia. of District in the applied only law federal the as sales, such permitting REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

might have done the job just as well. job just the might done have federal legislature, so long as it provided a plausible argument that its enactments its enactments that argument a plausible it provided as long so legislature, federal in it put he As powers. constitutional its were within the matter of the Bank of the United States, Marshall’s deference was capacious capacious was deference Marshall’s States, United the of Bank of the the matter how show to pressed hard been have might “he it, put White G. Edward as because, federal the by owned were the shares of 20 percent only in which bank a private powers. enumerated of exercise the to ‘necessary’” was government legitimate, let it be within the scope of the [C]onstitution, and all means which are are which means and all the [C]onstitution, of scope the within it be let legitimate, but prohibited, are not which end, to that adapted are plainly which appropriate, constitutional.” are the [C]onstitution, of spirit and letter with the consistent 42938-lcb_24-4 Sheet No. 29 Side B 02/02/2021 10:18:46 B 02/02/2021 29 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 30 Side A 02/02/2021 10:18:46

. A

OL : P note

AND . , M A

supra

. EFENSE OF OLITICS P D TUD S DEOLOGY ’ I

, , 11 S AW AND es regarded as a truism truism as a es regarded L ARSHALL Justice Roane, Justice M IN THE MARSHALL MARSHALL THE IN EFENSE OHN J D MERICAN

NTERPRETATION S I A ’ in

: , AW L IPSE DIXIT Those who claim Marshall as a textu- as Marshall claim who Those S ARSHALL ’ In his own time, however, Marshall’s Marshall’s however, time, own In his and his contemporari and 193

192 t and principle” approach, which straddles t and approach, principle” which straddles Amphictyon of having introduced “[a] new mode of amending RIGINALISM IN COURT COURT ARSHALL O

M , EILL McCulloch The Collapse of Constitutional Originalism and the Rise of the OHN J

, O’N 18–20 (2005) (characterizing Marshall’s opinions as predominantly 52, 74–76 (Gerald Gunther ed., Stanford Univ. Press 1969) (1819) 1969) Press Univ. Stanford ed., Gunther (Gerald 74–76 52, note 3, at 39–72 (describing Marshall’s “traditional” approach to HEVORY His pronouncements of the Constitution’s purposes adjudi- of Histhe pronouncements Constitution’s S

ISTORY supra 194 ONATHAN , J William Brockenbrough, H C. ARYLAND ARYLAND

, , M

. OLFE (1994) (explaining how Marshall utilized various interpretive techniques to match

HOMAS HOMAS 50 See, e.g. See, T See, e.g. See, Scholars who describe Marshall as engaged in some version of originalism usu- originalism of version some in as engaged Marshall describe who Scholars G. Edward White characterizes Marshall’s approach in a way that makes it it makes that way a in approach Marshall’s characterizes White G. Edward ULLOCH V ULLOCH 193 194 192 . 191, 194 (1997) (contending that Marshall (contending (1997) 194 . 191, C M K C EV ONSTITUTIONAL IV. INTERPRETIVE PLURALISM AND AND PLURALISM INTERPRETIVE IV. NTEREST NTEREST interpretation); Howard Gillman, Howard interpretation); Notion of“Living the Constitution” in the Course of American State-Building

textualist); W textualist); the constitution”).

M (contending that Marshall’s construction of the Necessary and Proper Clause was so broad as to make it impossible to imagine any scenario in whichfederal a court would strike down a congressional its powers); enactment as exceeding M I he had in mind).the Constitution C D “the idea that constitutionalism precluded an of an acceptance evolutionary conception of constitutional meaning”). 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1185 MARSHALL'S 2020] con- judge-made discovered suddenly judges if as decline, of narrative a present ally century. in law the twentieth stitutional Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM alist would have a hard time specifying the constitutional text on which his opinions text a have alist would the hard specifying constitutional time on statements relied in he specifically which few instances turn. identify They can the Constitu- of proclamations his self-serving beyond intentions of the Framers’ 168, at 109 in the Court (accusing cated disputes that the Framers themselves had never resolved on fundamental issues issues fundamental on resolved never had themselves Framers the that disputes cated and the government, federal of the powers limited the sovereignty, state as such to fixity some Court lent Marshall sum, the In review. of powers judiciary’s federal previ- that had not purposes and intentions, meanings, textual the Constitution’s to difficult proved has fixity that of in favor presumption The settled. been ously political antagonists attackedhim in ways thatanticipated the accusations of politi- Burger and Warren at the leveled were that legislation judicial and activism cal 1970s. the through 1950s the from courts tion’s intentions. tion’s overcome. overcome. “tex Jack Balkin’s to similar seem quite C Y 42938-lcb_24-4 Sheet No. 30 Side A 02/02/2021 10:18:46 A 02/02/2021 30 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 30 Side B 02/02/2021 10:18:46 M K C Y nciples of originalist inter- of originalist nciples cies in the Court’s interpretive interpretive Court’s in the cies He developed those principled principled those He developed 196 urt at the intersection of originalism originalism of intersection at the urt different directions, judges must use use must judges directions, different Whitecredits Marshalllin- using with note 10, at 1–20 (introducing his method of 10, at 1–20 (introducing his method note 195 supra supra

, do little to capture the nature of the legal dis- legal of the nature the capture to do little almost unavoidable. The Court’s constitutional constitutional Court’s The unavoidable. almost

199 200 decisions and that its non-hierarchical interpretive interpretive its thatand non-hierarchical decisions Lawrence Solum’s two pri two Solum’s Lawrence ipse dixit RIGINALISM 198 O note 93, at 785–86 (“No Court in American history was freer to make ipse dixit

IVING IVING note 93,8. at L supra

reasoning by showing inconsisten showing by reasoning 197 , , text accompanying notes 19–20. text supra

, HITE ALKIN B at 741. 741. at W

HITE ipse dixit See See W Id. Id. See supra See Rather than placing Marshall and his Co and his Marshall placing than Rather Part IV.B is a detailed look at two iconic decisions that John Marshall authored authored Marshall John that decisions iconic at two look detailed a is IV.B Part Part IV.A shows that the Marshall Court’s legal judgments often turned, at at often turned, judgments legal the Marshall Court’s Part IV.A shows that 195 196 197 198 199 200 constitutional interpretation construction, and which involves fidelity to text and principle). putes that arosethe in Marshall cases Court.always The raised issues (often multiple absence In the be fixed. not could meaning original where impression, first of issues) to ability the Court’s on existed few constraints or tradition, precedent of guiding fashionits substantive own rules. andliving as constitutionalism, Balkinwould, suggests that our White’s assessment con- to approaches nineteenth-century capturing for suited ill are modern categories interpretation. stitutional

1186 1186 constitutionalism. living and originalism REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM pretation, fixation and and constraint, fixation pretation, guistic analysis to give universal meanings to words like “contract” or “commerce” “commerce” or “contract” like words to meanings universal give to analysis guistic principles. into words these transform thus and Framers the by contemplated not contexts in terms constitutional of interpretations constitu- key of application earliest the and meaning the both established thus and provisions. tional methodologies. First, the very availability of multiple interpretive modalities on on modalities interpretive multiple of availability very the First, methodologies. which the Court drew in exercise the its of legal discretion that suggests interpre- its Because not traveled. roads I highlight by Second, law. not dictated were tive choices when can see we counsel, from arguments included the time at the case reporters sound arguments. address or refused to rejected summarily either the Court through seamlessly moved how Marshall show cases Court. The of the on behalf presented Marshall conclusions. at legal to arrive his modalities interpretive multiple their own intellectual resources and instincts to resolve the conflict. However, be- However, conflict. the resolve to instincts and resources intellectual own their their not write they do reasoning, legal on based to rule expected are judges cause the demonstrates Part leaps. This conclusory foregrounds that a way opinions in resort to pluralism made recourse to recourse made pluralism cases all raised questions offirst impression. When incommensurable and equally point in modalities interpretive authoritative critical junctures, on on critical junctures, up its own rules of law.Court had more first impression cases of constitutional No interpretation.”). 42938-lcb_24-4 Sheet No. 30 Side B 02/02/2021 10:18:46 B 02/02/2021 30 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 31 Side A 02/02/2021 10:18:46

, as as and Popular

Fletcher v. PeckFletcher v. Hans Louisiana v. to apply contracts to and 204 gal outcome over another another over outcome gal Chisholm v. Georgia Dred Scott . For example, in . For example, Often, when the Marshall Court Court Marshall the when Often, 202 ipse dixit

y to undertake originalist research”). Reasoning Reasoning e Framers’ intentions become the sleight of hand of hand the sleight become intentions e Framers’ at 325–26 (reiterating this conclusion). at 325–26 (reiterating decisions to favor one le one favor to decisions at 1213 (finding it unsurprising that originalism did not id. Ipse Dixit

note 54, at 281 (“[T]hose who have studied anecdotal evidence evidence anecdotal studied have who (“[T]hose 281 at 54, note The People or the State? the State? or The People Ipse Dixit supra supra ipse dixit note 1, . 1729, 1744 (2007) (naming (naming (2007) 1744 1729, . EV R

supra

. art. I, § 10. § 10. I, . art. L.

. 203 A Gestures towards th Gestures towards ONST C 201

Randy E. Barnett, Toler & Cecere, Clinton, , 93 V , 93 judgments with invocations of masking originalintent, thus subjective See See See See U.S. 1. Intentionalism and and 1. Intentionalism early the out, pointed has scholar, Originalist New leading a Barnett, As Randy Marshall’s approach can be reconciled with constitutional fidelity, as his judi- as his fidelity, with constitutional be reconciled approachMarshall’s can Given his own credentials, Marshall felt no need to consult sources in order to to in sources order to consult Marshall hisGiven no need own credentials, felt 201 202 203 204 M K Court at times relied on “counterfactual hypothetical intentions of the of the intentions hypothetical “counterfactual on relied Court at times [F]ramers.” cial opinions were always with consistent of his what understanding re- the law about ideas fixed Marshall’s by informed was understanding that However, quired. to- Marshall steered ideas Those shaped. it that Republic the and the Constitution were unfounded, not while choices, those and choices, interpretive wards certain argument. legal in not grounded and Modalities A. Interpretive legally justifiable outcome. outcome. justifiable legally

Sovereignty and practiced methodology align.”); with the States, viewing his reading as in line with the implicit, if not the express, express, the not if implicit, the with line in as reading his viewing States, the with have largely taken Justices’ claims at face value, without discovering whether the Justices’ claimed claimed Justices’ whether the discovering without value, at face claims Justices’ taken largely have 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1187 MARSHALL'S 2020] the all supporting in combination, working as approaches interpretive the different rejected Marshall results, divergent yielded modalities the Where outcome. same suggesting rhetoric, strong using explanation, without options interpretive available to address no reason was there that misguided obviously were so that the alternatives made in fact them. He Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

references original meaning or intention, the Justices actually pay no mind to evi- mind no pay actually Justices the intention, or meaning original references dence of either. discern the Framers’ intentions. Many of his statements invoking intentionalism intentionalism Many invokingof statements intentions. his discern the Framers’ from to distinguish difficult thus become Clause Contracts of the the reach expanded he cavalierly through which the Justices obscure other interpretive modalities, such as appeals to appeals to such as modalities, interpretive other obscure the Justices through which their preface decisions court early Some considerations. pragmatic or law natural ipse dixit authority. to appeals with rhetorical opinions examples of this rhetorical strategy). rhetorical this of examples predominate in early constitutional jurisprudence “in light of the general unavailability at that time of primary historical materials necessar C Y 42938-lcb_24-4 Sheet No. 31 Side A 02/02/2021 10:18:46 A 02/02/2021 31 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 31 Side B 02/02/2021 10:18:46

M K C Y inten- decision as Marshall 206 , , as they understood Dartmouth College purposes , further eroding the line be- eroding the , further At times, Marshall indicated indicated times, Marshall At 211 Fletcher

note 4, at 887 (describing one strain in the supra Dartmouth College v. Woodward v. College Dartmouth , In

note 54, at 306–08 (detailing the availability of source note 54, at 306–08 (detailing the availability

205 207 but he preferred to rely on his own sense of order and but he preferred to and rely on his own sense of order supra note 103, at 235 (describing the note 103, at 235 (describing decision as, view, in Marshall’s note 103, at 253 (characterizing the 210 note 64, at 1221. supra supra

supra , , Original Understanding , Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 437 (1827) (observing that in EWMYER EWMYER

e.g. Toler & Cecere, N N Eisgruber, Powell,

decision making. decision 209 See See See, See Trs. of Coll. Dartmouth v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). See See As Chris Eisgruber put it, As Chris stract way, referring not to any specific judgments made by actual Framers Framers actual by made judgments specific any to not in a highly ab- “intent”—but he almost always did so Marshall did refer to referring way, stract had when they have must people American rather to aspirations that the but pro- general nature of the constitutional given the adopted the Constitution, ject. The opinions of the Marshall Court include numerous statements endorsing a Court include numerous the Marshall of The opinions 2. Textualism, Skepticism, and 2. Skepticism, and Teleology Textualism, H. Jefferson Powell has shown convincingly that eighteenth-century intention- eighteenth-century convincingly that Powell has shown H. Jefferson 208 , the Justices were often thinking of the Framers’ Framers’ the thinking of were often , the Justices 209 210 211 205 206 207 208 interpreting a constitutional provision, “it is proper to take a view of the literal meaning of the words to be expounded, of their connection [sic] with other words, and of the to general objects be accomplished by the prohibitory clause, or by the grant of power”); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824) (“[T]he whoenlightened patriots framed our constitution, and the comporting “closely to the general, if notcomporting “closely the explicit, intent of the Framers”). afterviews expressed during and immediately the Constitution’s adoption that indicated “willingness to interpret common law principles the constitutional text in accordance with the that had been used to construe statutes”).

tween private and public law. and public tween private expanded on the doctrine first announced in in announced on the doctrine first expanded a “fusion of public and private, of the law common with the Constitution”). 1188 1188 Constitution. of the intentions REVIEW & CLARK LAW LEWIS 24.4 [Vol. Telman_EIC_Proof_CompleteNot (Do Delete) 1/24/2021 2:11 PM materials from the Framing period, including the Federalist Papers, some documents from the Convention, and some reports from the state ratification debates). Justice Marshall had sources available to him that would have enabled him to inves- would have enabled had sources available to him that Justice Marshall intentions, tigate original textual approach, at least as a point of departure. approach, at least as textual justice. The Marshall Court’s version of intentionalism overlapped extensively with intentionalismjustice. The Marshall Court’s version of with extensively overlapped the Framers’ the Court invoked teleological approach. When or a purposive tions signal can purposes or Framers’ undocumented intentions on the them. Reliance ipse dixit alism did not involve any sort of inquiry into the Framers’ expressed views of the of views the Framers’ expressed into inquiry of sort any not involve alism did the Early of like other Justices Marshall, when Rather, Constitution. the meaning of a process of engaged in he intentions, Framers’ the discerning Republic, wrote of statutory construc- of canons traditional drew on that common law interpretation tion. 42938-lcb_24-4 Sheet No. 31 Side B 02/02/2021 10:18:46 B 02/02/2021 31 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 32 Side A 02/02/2021 10:18:46

As As 215

in he he 216 , Marshall Ideas Ideas NDEPENDENCE I NDERSTANDING . 1063, 1089–93 1089–93 . 1063, U EV R

L. UMAN UMAN H Originalist Sin: The Failure Failure The Sin: Originalist : LARK C

Dartmouth College Dartmouth ECLARATION OF & D nt to doing so must be read read so must be doing nt to S ’

ONCERNING ONCERNING EWIS 212 C , L SSAY According to Gary Wills,Locke’s Gary to episte- According EFFERSON

E J

214 N : A

, note 194; Marc Mohan, Note, MERICA OCKE A L supra supra , OHN

NVENTING 217 I HEVORY

Essay Concerning Understanding Human Essay Concerning , S ILLS W . at 26 (discussing Locke’s views on abstract concepts such as “contract” and at 24–25 (citing J

ARY Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 645 (1819). (1819). 645 518, Wheat.) (4 U.S. 17 Woodward, v. Coll. Dartmouth Trs. of See generally G Id. id See Sturges v. Crowninshield, 17 U.S.(4 Wheat.) 122, 202–03 (1819). 213 Judges regularly give effect to the clear meaning of unambiguous texts. How- unambiguous texts. of meaning the clear to effect give Judges regularly Every man has so inviolable a Liberty, to make Words stand for what same the have others make to Power the hath one no pleases, that [A]lthough the spirit anof instrument, especially of a constitution, is to be from chiefly be collected to is spirit the yet letter, its less than not respected its words. [I]f,.. . any in case,the plain meaninga provision, of not contra- dicted by any other provision in the same instrument, is to be disregarded, because we believe the framers thatof instrument could not intend what they say, it must be one in which the absurdityand injustice of applying the provision to the case, would beso monstrous, that all mankind would, without the application. rejecting in unite hesitation, their Minds, that he has, when they used the same Words, that he does. Words, same that the used they he has, when that Minds, their 213 214 215 216 217 212 M K

Locke put it in Locke his Locke was especially skepticalwhen it came to the communicationof complex con- ascepts justice. such 169–70 (1989). (1989). 169–70 1976)). (Niccitch, ed. against the backdrop of Lockean skepticism, which exerted a powerful influence on influence a powerful skepticism, which exerted Lockean of against backdrop the generation. founding States’ United the ever, statements evidencing Marshall’s commitme Marshall’s evidencing ever, statements “justice”). (2020). (2020). people who adopted it, must be understood to have employed words in their natural sense, and and sense, natural their words in employed have to be understood it, must adopted who people to have intended, what they have said.”). of Originalism to Justify the Unitary Executive Theory Here, Marshall indicates that, absent absurdity, plain meaning must govern, even if must if meaning plain govern, even absent absurdity, that, indicates Here, Marshall in Similarly, purpose. inconsistent with Framers’ the “obvi- are that results yield that readings out textual rule would he that indicated instru- the of spirit the general to or repugnant or mischievous, absurd, ously ment.” 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1189 MARSHALL'S 2020] text: constitutional the on based primarily were Constitution the of that his readings Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

mological ideas influenced the Framers more than his political theory did. theory political his than more Framers the influenced ideas mological C Y 42938-lcb_24-4 Sheet No. 32 Side A 02/02/2021 10:18:46 A 02/02/2021 32 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 32 Side B 02/02/2021 10:18:46

M K 224 220 xiii xiii C Y Wil- 226 , observ- 1776–1787 xvi xvi 1776–1787 EVOLUTION EVOLUTION

, R No.37

rough treatment of the the rough treatment of . 1 (2019). . 1 (2019). EPUBLIC R EV MERICAN But Madison acknowl- Madison But R

A 221 L.

223 . 527 (reading Madison to permit

The Federalist The MERICAN TAN A More generally, Madison noted note 32, at 527–31 (citing Madison’s Madison’s (citing 527–31 at 32, note 218 , 71 S Ideas about the good society and good and good good about the Ideas society note 32,at RIGINS OF THE For the most recent, tho For the most recent, 225 supra supra O d ambiguous provisions could obtain fixed fixed obtain could provisions ambiguous d , supra supra , opinion, struck a Lockean chord, citing with chord, citing with opinion, struck a Lockean (James Madison) (Clinton Madison) (James Rossiter ed., 1961).

REATION OF THE For Madison, the solution to this problem was to this problem solution the For Madison, from seventeenth- and eighteenth-century polit- from and eighteenth-century seventeenth- C 219 HE DEOLOGICAL T I

More problematically for originalists seeking to deny to deny seeking originalists for problematically More , Chisholm 37, at 228 37, at

at 530 n.40 (citing examples of statements from the Early Republic Republic from the Early statements of examples (citing n.40 530 at HE 222 . T O Constitutional Liquidation OOD

id. , N W

S. Interpretive Conventions Interpretive Interpretive Conventions Interpretive AILYN B EDERALIST at 531–32; 531–32; at ORDON F Nelson, Nelson, G Nelson, Nelson, at 229. 229. at

HE ERNARD See See id. See (1793). 454 419, Dall.) (2 2 U.S. Georgia, v. Chisholm B See T Id. Id. See Madison could be read to be saying that textual ambiguity could be overcome overcome be could ambiguity textual that be saying to be read could Madison James Wilson, in his James Madison voiced a Lockean perspectivein 222 223 224 225 226 218 219 220 221 endorsing the power of practice to fix constitutional the power endorsing practice to of meaning). ing that obscurity inevitably arises in human institutions “from the object itself as as itself object the “from institutions in human arises inevitably obscurity that ing is contemplated.” it which organ by the from (1998) (noting that “terms and categories of political thought were undergoing rapid change” in constitution were extremely fluid in the last third of the eighteenth in third of century. fluid the last the eighteenth were extremely constitution edged that not all legislation had the power to fix meaning, nor did he think that all all that he think nor did meaning, fix to power had the legislation all that not edged of interpretation the correct to as precedent binding established decisions judicial constitutional provisions. Wilson’s invocation of Reid merits close attention. As Bernard Bailyn showed, while while showed, Bailyn Bernard As attention. close merits Reid of invocation Wilson’s ideas borrowed the Framers freely those ideas. ical they theorists, transformed through interpretive processes. Vague an Vague processes. interpretive through meanings through legislative processes or adjudication. acknowledgement that some statutes are hastily adopted and that only of a certain “precedents description” can fix constitutional meaning). (1967) that American revolutionary (observing pamphlets transformed their inherited tradition of political and social thought). 1190 1190 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

approval Thomas Reid’s observation that, “[i]t is hardly possible to make any inno- any to make possible hardly is “[i]t that, observation Reid’s Thomas approval using without its operations, and the mind philosophy concerning our vation in received.” are that those to meaning a different or giving phrases, and new words not pure textualism, because “[a]ll new laws . . . are considered as more or less ob- less or more as are considered . . . laws new “[a]ll because textualism, not pure “be can which meaning though process law common the but equivocal,” and scure adjudications.” and discussions particular of a series by ascertained and liquidated anything approaching living constitutionalism, there is evidence that the Framers Framers the that is evidence there constitutionalism, living approaching anything meaning. constitutional fix could practice that believed that “no language is . language that“no phrases] equiv- and . [words many include as not to . so correct ideas.” different denoting ocally subject, see William Baude, subject, Baude, William see “liquidation” through adjudication or legislation). 42938-lcb_24-4 Sheet No. 32 Side B 02/02/2021 10:18:46 B 02/02/2021 32 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 33 Side A 02/02/2021 10:18:46 . . EV R

Mar- L.

at 283 at . McCul- 231 A ipse dixit that “com- that But see id. see But , 167 U. P , 167 Gibbons v. Ogden v. Gibbons Data-Driven Originalism Aware of eighteenth-century skepticism skepticism eighteenth-century of Aware

227 note 4, at 910. 910. 4, at note ***** ***** something more: it is intercourse.” it is more: something supra , Contemporary originalists, using corpus linguistics linguistics corpus using originalists, Contemporary (noting that between the Declaration of Independence (noting that between the and id. 229 rendering of “commerce,” but it could not claim to be be to claim not it could but “commerce,” of rendering linguistic choice with far-ranging consequences. far-ranging consequences. with choice linguistic possible a narrow definition that Marshall expressly rejected: “Com- rejected: expressly Marshall that a definition narrow 230 The Framers’ decision to use general terms, like “due process of of process “due like terms, general to use decision The Framers’ . “Such is the character of human language, that no word conveys conveys word no that language, human of character the is “Such . reasoning is Marshall’s declaration in in declaration Marshall’s is reasoning 228 Original Understanding Original 189. at U.S. 22 , ipse dixit Thomas R. Lee & James C. Phillips, Phillips, C. James & Lee R. Thomas McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 414 (1819). (1819). 414 316, Wheat.) (4 17 U.S. Maryland, v. McCulloch Powell, (1824). 189 1, (9 Wheat.) U.S. 22 Ogden, v. Gibbons See Gibbons ipse dixit Because the Framers and the Justices of the Early Republic embraced a skeptical skeptical a embraced Republic Early the of the Justices and the Framers Because JohnMarshall similarly sounds Lockean approach in his languagein to 227 228 229 230 231 M K tation was an an tation was

and never in legal at the Constitution texts time the was adopted). (acknowledging the limitations of their methodology because looking at the term “commerce” in isolation may overlook the broader semantic and pragmatic context). methodology, have strong empirical grounds to argue that “commerce” was a cog- was “commerce” argue that to grounds empirical have strong methodology, nate for “trade,” merce, undoubtedly, is traffic, but it is but traffic, is merce, undoubtedly, law” and “cruel and unusual punishment,” suggests an expectation that later gener- later that expectation an suggests punishment,” unusual and “cruel and law” ations would give more specificphrases. contentto those second-order preclude not does approach textualist a language, of view shall’s rendering of the meaning of “commerce” was not without textual foundation. foundation. textual not without was of “commerce” of the meaning rendering shall’s a “Intercourse” was conno- a broad “commerce” to give decision Marshall’s rendering. the predominant

261, 310 (2019) (finding that the term “commerce” very rarely very mean261, was taken to “all 310 intercourse” the term “commerce” that (2019) (finding the period under consideration); under the period the Constitutional Convention “a fundamental transformation of political culture had taken place.”). 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1191 MARSHALL'S 2020] son’s invocationReid of in comes thea of context discussion of sovereignty, sug- fluxwere in at the time theory and political gesting to terms basic that constitutional Framing. of the Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM loch v. Maryland v. loch regarding the ability of language to fix meaning, H. Jefferson Powell concluded that that concluded Powell H. Jefferson fix meaning, to of language ability the regarding judicial for room left they to “intent,” referred Republic Early of the when the courts the interpretive of product is the legal document any of “[T]he ‘intent’ discretion: text the document’s into locks author that the meaning fixed some not process and at the outset.” Given that language is unavoidably imprecise, constitutional interpretation often often interpretation constitutional imprecise, unavoidably is language that Given A example of clear this aof provision. possible a among involves renderings choice sort of merce” means “intercourse.” merce” means to the mind, in all situations, one single definite idea; and nothing is more common common is more nothing and idea; definite one single situations, all in mind, to the sense.” a figurative in than to use words C Y 42938-lcb_24-4 Sheet No. 33 Side A 02/02/2021 10:18:46 A 02/02/2021 33 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 33 Side B 02/02/2021 10:18:46

: M K L.J. C Y Leigh EFENSE UKE D (Jan. 21, (Jan. S ’ see also , 37 D LOG B NTERPRETATION I ARSHALL HEORY HEORY

T 238 ATTER OF at 169. 169. at

M EGAL EGAL

A , L tion of inquiry into legislative legislative into inquiry of tion he opened a new front in the the in front new a opened he in , 234 note 168, note onciled with intentionalism, but some some but intentionalism, with onciled supra

. 121, 125–26 (1991) (discussing recourse to . 121, (discussing 125–26 to recourse (1991) asit ifproducta were of the excessesof EV 236 Marshall’s approach to interpretation gave gave interpretation to approach Marshall’s R

232 L.

. O Observations about the Use of Legislative History Justice Roane, Justice Justice Scalia characterized reliance on legislative his- Justice reliance Scalia characterized

56 M 36–37 (1997) (arguing that research legislative into history is a 235

, at 166 (citing Vattel for the proposition that legal texts “are to be be to texts “are that legal proposition Vattel the (citing for 166 at

(observing that it is “well-settled”textual ambiguity that may be 233 AW

Common Law Courts in a Civil-Law System:Role ofThe United States L Legal Theory Lexicon: Textualism Lexicon: Theory Legal EFENSE EFENSE the intention of the parties, and shall bethe intention of the parties, construed and shall liberally, or D S ’ note 168, Role of Legislative History in Statutory Interpretation: A New Era after the , Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 437 (1827) (noting that one one that (noting (1827) 437 419, Wheat.) (12 25 U.S. Maryland, v. , Brown at 18, 21 (tracing inquiries into legislative intent back to 1892 and calling it , Kenneth W. Starr, , supra ARSHALL

e.g.

M Antonin Scalia, at 36. 36. at OURTS AND THE (1987) (explaining how rise administrative of the agencies beginning in the late

C Nonetheless, the textualist/purposivist division today. continues in- Solum See id. Id. See, Solum, Lawrence See See See See, e.g. See, , 22 U.S. at 188–89 237 Marshall’s version of textualism also invoked Emer de Vattel and the teleolog- and the de Vattel Emer invoked also of textualism version Marshall’s Teleological interpretation can be rec can interpretation Teleological 372 235 236 237 238 233 234 232

EDERAL important part of the judicial process at least since the advent of the administrative administrative the of advent the since least at process judicial the of part important state. tory as a “brief and failed experiment,” failed and a “brief as tory cludes the search for“[p]urposivecludes the search [m]eaning,” purposeas defined “the a for which is not. textualism things that of his list in written,” text was legislative history in the early twentieth century). century). twentieth the early in history legislative nineteenth century required courts to broaden their approach to interpretive issues); Ann McDonald, Brennan? Justice of Resignation battle between the Rehnquist Court’s conservative majority and the legacy of the the of legacy the and majority conservative Court’s Rehnquist the between battle Courts. andWarren Burger restrictively, as may best promote the objects for which they were made”). The modern version of of version modern were made”). The which they for objects the best promote restrictively, as may to this teleological approach interpretation in international law can be codified found in the 340 331, U.N.T.S. 1155 1980, 27, Jan. 31(1), art. Treaties, of Law the on Convention Vienna (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given and purpose.”). its object and in the light of context treaty in their the of the terms to

Federal Courts in Interpreting the Constitution and Laws and Constitution the Interpreting in Courts Federal “nothing but an invitation judicial to lawmaking”). 371, Justice Roane, Justice understood according to F intent has a much longer heritage. Courts’ reliance on legislative history has been an an been has history legislative on reliance Courts’ heritage. longer a much has intent accomplished”); be to general objects “the to construe with a view to constitutional clauses ought Gibbons 1192 1192 REVIEW LAW & CLARK LEWIS 24.4 [Vol. tradi But the liberalism. legal mid-twentieth-century Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM due weight to “[t]he nature of the instrument, the words that are employed, [and] [and] employed, are that words the instrument, the of nature “[t]he to weight due effected.” be to the object 2018), http://lsolum.typepad.com/legaltheory/2018/01/legal-theory-lexicon-textualism.html. 2018), http://lsolum.typepad.com/legaltheory/2018/01/legal-theory-lexicon-textualism.html. waste of time and calling for its abandonment). ical approach, according to which legal texts could be construed strictly or liberally or liberally strictly be construed could texts ical legal approach,which according to objectives. with their in accordance contemporary originalists think it inconsistent with textualism. When Justice Scalia Scalia Justice When textualism. with it inconsistent think originalists contemporary history, legislative ignore to judges upon called resolved in the light of “the objects for which objects the for M light “the [an instrument] was of given”); in resolved 42938-lcb_24-4 Sheet No. 33 Side B 02/02/2021 10:18:46 B 02/02/2021 33 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 34 Side A 02/02/2021 10:18:46 70,

. EV R

. OLUM , 106 C , 106 As one self-described textualist textualist As one self-described 242 rary history” and then to harmonize harmonize then to and history” rary

What Divides Textualists from Purposivists? note 28, at 305 (“The first and fundamental rule in the interpretation

Consequently, Story suggested that “the safest rule of interpreta- rule of safest “the that Story suggested Consequently, 241 supra supra

Justice Story acknowledged that many constitutional provisions are are provisions constitutional many that acknowledged Story Justice ,

240 , Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 324–25 (1816) (relying on on (relying (1816) 324–25 304, Wheat.) (1 14 U.S. Lessee, Hunter’s v. , Martin TORY note 28, at 350. 350. at 28, note S

at 309. 309. at

John Marshall quite commonly found that the Constitution’s text did not not did text the Constitution’s that found commonly quite Marshall John 243 John F. Manning, Id. Id. e.g. See, See See supra supra

239 , Unlike Justice Scalia and Solum, Justices during the Early Republic saw no no saw Republic the Early during Justices Solum, Unlike Scaliaand Justice However, during the Early Republic, judges viewed both textualism and tele- and textualism both viewed judges Republic, Early the during However, acting part; for if they are clear and unambiguous, there seems little room for interpretation, interpretation, for room little seems there unambiguous, and clear are they if for part; acting overthrowleadingexceptaor absurdity, obvious direct to to in cases an the intention of expressed preamble. in the It is an admitted maxim in the ordinary course of the administration of justice, that the the that justice, of administration the of course ordinary the in maxim admitted an is It are which mischiefs the to as makers, the of mind the open to key a is a statute of preamble statute the of provisions the by accomplished be to are which objects the and remedied be to en- the of words the upon arise doubts ambiguities or resorted where to is properly . It . . . 243 240 241 242 239 M K TORY sovereign powers); Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (listing the provisions of the the of the provisions (listing (1798) 386, 388 Dall.) (3 3 powers); Bull, U.S. Caldersovereign v. Preamble as establishing the contours 2Dall.) Congress’s of power); U.S. (2v. Georgia, Chisholm 419, federal 463–64 (1793) (construing under Article jurisdiction III in light the Preamble’s of explains the Story Justice the Constitution, In his treatise on establishmentcall justice). of the for Preamble: the of consideration of importance

the “We, the people” language in the Preamble to establish the source of the federal government’s government’s federal the of source the establish to the Preamble in language people” the the “We, ambiguous, having arisen as products “of compromise [and] of opposing interests interests opposing of as products “ofarisen [and] compromise ambiguous, having opinions.” and 71 (2006) (citing, for example, Church of the Holy Trinity v. United States, 143 U.S. 457, 459 459 457, 143 U.S. States, United v. Trinity the Holy of Church example, for (citing, 71 (2006) (1892)). opposition between textualism and teleology. Justices cited to the Constitution’s Constitution’s to the cited Justices teleology. and textualism between opposition in provisions read substantive they that suggesting decisions, for a basis as Preamble purposes. general the Constitution’s the light of

S ology as tools for discerning legislative intent, which they saw as their duty to en- to duty their as saw they which intent, legislative discerning for tools as ology force. allof construe and the instruments is, to intention of the the terms the sense of to them according parties. Mr. Justice Blackstonebe gathered intention of the remarked that the a law has is to from and spirit or the the reason of and consequence, effects the the subject-matter, words, the context, law.”). 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1193 MARSHALL'S 2020] Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM provide a plain meaning, leaving him free to consult his own sense of the instru- the of sense own his consult to free him leaving meaning, plain a provide ment’s purpose. noted, “For a not inconsiderable part of our history, the Supreme Court held that that held Court the Supreme partour history, of a not inconsiderable “For noted, con- two the when (purpose) its ‘spirit’ to must yield statute a of (text) the ‘letter’ flicted.” text and purpose. tion [is] . . . to look to the nature and objects of the particular powers, duties, and and duties, powers, particular the of objects and the nature to look . to . [is] . tion contempo of aids and lights the all rights, with C Y 42938-lcb_24-4 Sheet No. 34 Side A 02/02/2021 10:18:46 A 02/02/2021 34 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 34 Side B 02/02/2021 10:18:46 M K C Y For 246 He bolstered this this bolstered He 248 , he rejected “narrow “narrow , he rejected , as is clear from Justice , as is from Justice clear that he found implicit in the the in implicit found he that Gibbons 249 Gibbons v. Ogden v. Gibbons note 93, 590 note at (discussing the difficulties with supra e federal government, not on the states. not government, e federal

, In ruling that the Bill of Rights did not apply to to apply did not Rights of that the Bill In ruling He then proceeded to a textual analysis of Article Article of analysis textual a to proceeded He then This axiom is nowhere to be found in the consti- in found be to is nowhere This axiom ). ). 244 245 This passage from 250 HITE W 251 Barron provides a useful illustration of the interplay between tex- between interplay the of illustration useful a provides But see see But . Marshall pointed to the Constitution’s “general spirit,” citing to , 32 U.S. at 250. 250. at U.S. 32 ,

at 247. 247. at 384–85. at 384. at at 248–49. 248–49. at 247 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). (1833). 243 Pet.) (7 32 U.S. Baltimore, v. Barron Id. Id. Barron (1821). 384 380–81, 264, Wheat.) (6 19 U.S. Virginia, v. Cohens Id. Id. (1824). 188 1, Wheat.) (9 22 U.S. Ogden, v. Gibbons Marshall believed that a teleological interpretation, supported by a broad read- by a broad supported interpretation, a teleological that believed Marshall Barron v. Baltimore Baltimore v. Barron Marshall similarly combined textual and teleological arguments in permitting permitting inarguments and teleological Marshall textual similarly combined 244 245 246 247 248 249 250 251 Marshall’s textual argument in tutional text, but it was a fundamental element of Marshall’s understanding of the the of understanding Marshall’s of element fundamental a was it but text, tutional judiciary. federal of the role with inconsistent interpretation textualism a narrow trump should text, the ing of purposes. In objects and the instrument’s

good measure, Marshall added historical and intentionalist arguments that sup- that arguments intentionalist and historical added Marshall measure, good amend- for push the that noting readings, textual his and teleological his both ported of fears to be a response to understood” “universally was ments to the Constitution govern- local the of against those government—not general the of “encroachments ments.” 1194 1194 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM tual and teleological reasoning. teleological and tual vaguely textual reference with a “political axiom” “political a with reference textual vaguely Story’s gloss on the subject, was clearly directed at Thomas Jefferson, St. George George St. Jefferson, Thomas at directed wasclearly the subject, on gloss Story’s as a Tucker, and others among the sovereign Constitution compact viewed who the where power federal of scope the of readings narrow favored thus and states text that “the judicial power of every well constituted government must be co-ex- government constituted well of every power “the judicial text that legislat[ure].” with the tensive construction[s] which, in support of some theory not to be found in the [C]onsti- found be to not theory of some in support construction[s] which, grant, of the the words which powers those government the to deny would tution, and the general views with are consistent and which import, understood, usually as objects of the instrument.” the exercise of the Court’s appellate jurisdiction over a state criminal conviction in in conviction criminal a state over jurisdiction appellate Court’s the of the exercise v. Virginia Cohens Clause. Supremacy the and sovereignty popular of principle the I, Sections 9 and 10, and the Bill of Rights in support of his conclusion that the Bill Bill the that conclusion of his in support Rights of Bill the and 10, and 9 I, Sections on th limitations placed of Rights the states, Marshall began with a teleological observation, noting that the Constitu- the that noting observation, a teleological with began Marshall the states, govern- “the States, not United of the people of the the government tion concerned states.” individual the ment of 42938-lcb_24-4 Sheet No. 34 Side B 02/02/2021 10:18:46 B 02/02/2021 34 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 35 Side A 02/02/2021 10:18:46

Richard A. 257 But see

Marshall’s nationalism 252 rior Courts as the Congress may but non-legal commitments in- commitments but non-legal The concept of limited powers is powers limited of The concept

decision determined by extra-legal extra-legal by determined decision 254 256 dicators and the amount discretion of thereby 576, 615 (2014) (noting that, for most Framers, most that, for (2014) (noting 615 576,

art. III, § 1 (“The art. III, judicial § Power of the United

id. Marshall acknowledged the inevitability of inevitability the acknowledged Marshall L.J. ipse dixit its authors. Philip Bobbitt defines structural its defines authors. Philip Bobbitt In addition, I regard as structural, interpreta- as structural, I regard In addition, 253 art. II, § 1 (“The executive Power shall be vested in a a in vested be shall Power executive 1 (“The § II, art. ALE 255 Y Court, and in such infe and Court,

id. 124

, note 194, at 45 (stressing the variety of interpretive the variety of 45 (stressing approaches at 194, note note 28, at 313, 321 (rejecting Tucker’s Blackstone). explication of 321313, (rejecting 28, at note . art. I, § 1legislative (“All Powers herein. granted art.shall I, § be vested in a supra supra note 47, at 7. 7. at 47, note , supra supra

ONST , C supra supra

HEVORY TORY S U.S. S Bobbitt, See (1819). 419–20 316, (4 Wheat.) U.S. 17 Maryland, v. McCulloch See See See (1824). 866 738, Wheat.) (9 U.S. 22 U.S., the of Bank v. Osborn The Limits of Enumeration

Structural interpretation is distinct from both textualism and intentionalism. intentionalism. and both textualism from is distinct interpretation Structural 3. Structural, Historical, Precedent-Based, and Moral Reasoning Precedent-Based, and Moral Historical, 3. Structural, Finally, we turn toother interpretive modalitiesthat playeda role in the Mar- 255 256 257 252 253 254 M K

shall Court’s legal reasoning. The variety of interpretive options available to the Jus- available options interpretive of The variety reasoning. legal shall Court’s tices gives rise a legal to discretionthat allows judges to make choicesvalid among inter- non-hierarchical ambiguity, textual resolve cannot a judge When approaches. available to eighteenth- and nineteenth-century adju implicit in the enumeration of Congress’s powers in Article I, Section 8. I, Section Article powers in Congress’s of enumeration the in implicit form that legal discretion. discretion. legal form that constitu- the particular of the meaning on neither turns interpretation Structural of nor the intentions provisions tional the in implicit is result practical or principle particular a that “claims as arguments the Constitution by are created that the relationships and government structures of among and citizens governments.” the exercise of what he called “legal discretion,” “legal called he of what exercise the the most important mechanismsthe most for constraining were Congress neither as a external limits, such Bill of Rights, nor internal limits, such as an enumeration, but process limits, such as separation Primus, 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1195 MARSHALL'S 2020] sovereignty. burden state would powers of such exercise Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

concerns. concerns. cer- of or the location provisions among textual on the relationship turn tions that pow- of separation of principle the example, For a document. within provisions tain from the it is implied Rather, text. constitutional in the nowhere ers is articulated separate vesting clauses of ArticlesIII. I, II, and informed his understanding of the text. The constitutional text itself of course proof course itself text constitutional The the text. of his understanding informed con- or narrowly broadly be it should whether to as to judges no direction vides an is choice interpretive The strued. judg- value call now might what we of importation the necessitates pluralism pretive process. the interpretive ments into created). .”); . . . States the United of Congress President of the United States of America.”); America.”); of States the United of President from time to time ordain and establish.”). time ordain time to from States, shall be vested in one supreme supreme vested in one be States, shall C Y 42938-lcb_24-4 Sheet No. 35 Side A 02/02/2021 10:18:46 A 02/02/2021 35 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 35 Side B 02/02/2021 10:18:46 M K C Y

261

The location The location 259 . 415, 420 (2018) Worcester v. Geor- v. Worcester G. Edward White White G. Edward EV R

266 Marshall saw no need L.

. The first evidence Mar- evidence first The 267 “The Essential Characteristic”: 258 ICH Primus, , 117 M , 117 ecedent in determining that Georgia Georgia that in determining ecedent “attention to history and to the principles principles on which the case could be be could which the case on principles ofamong the Clause Congress’s enu- Once he had addressed preliminary juris- preliminary addressed had Once he 265 . location nal] Convention, during process, and into the ratification InMarshall’s view, such historical materials not were provides perhaps the clearest example of structural rea- structural of example clearest the perhaps provides Worcester . 262 note 93, at 733. 733. at 93, note If the Framers had intended otherwise, they would have put put have they would otherwise, had intended If the Framers note 93,733. at 734. at 93, note 260 , 31 U.S. at 560–61 (1832) (reasoning, based on “the actual state of things” things” of state actual “the on based (reasoning, (1832) 560–61 at U.S. , 31 supra 17 U.S.at 419.

, , supra supra

, , HITE 419–20. 419–20. 420.

Marshall appealed to historical pr historical to appealed Marshall

(articulating Marshall’s perspective that W at at

HITE HITE 263 Id. Id. Id. See Id. (1832). 573 515, Pet.) (6 31 U.S. Georgia, v. Worcester W Worcester See W McCulloch Marshall’s review of the history of the relevant legal doctrines took up nearly nearly up took doctrines legal the relevant of the history of review Marshall’s In the absence of binding positive law, Justice Marshall looked to comparative comparative to looked Marshall Justice law, positive binding of absence In the McCulloch v. Maryland Maryland v. McCulloch 260 261 262 263 264 265 266 267 258 259 264 . gia Enumerated Powers andBank the of the United States two-thirds of his opinion in opinion his of two-thirds of the Necessary and Proper Clause in Article I, Section 8 makes it an expansion of of an expansion makes it 8 I, Section Article in Clause Proper and Necessary of the Congress’s powers. merely background, they established the legal legal the established they background, merely decided. to be expansive about legal doctrine because the basis for it was so from clear history. embodied in that history . . . went a long way to disposing of the issues”). the issues”). of disposing to way long a went . . . history that in embodied and history, federal that the governmentexclusive had power regulate to American Native affairs). of powersof and democratic accountability); Richard A. could not regulate conduct within Native American territories in territories American Native within conduct not regulate could 1196 1196 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM historical precedent for rules that he treated as dispositive. When confronted with with confronted When as dispositive. that for he rules treated precedent historical review- by begin typically would he cases, property in issues jurisprudential weighty to the America in colonies European of the advent from dating law of ing sources describes Marshall’s reasoning describes but “cryptic.” here as “bold” Marshall’s reasoning it in Article I, Section 9, which sets forth limits on Congress’s powers. Congress’s on limits sets forthwhich 9, I, Section Article it in soning by the Marshall Court. Justice Marshall explains that the most conclusive most conclusive the that explains Justice Marshall soning Court. the Marshall by Proper and Necessary the of construction narrow Maryland’s against argument it. in adopting of Clause is the Convention the intention dictional issues in three pages, he needed only three pages to determine that Native Native that determine to pages three only needed he pages, three in issues dictional or themselves tribes the by only regulation to subject were territories American States. United the and tribes the between agreements through (observing that “[a]t the [Constitutio the principle, the enumeration denied Americans well-informed of number any 1790s, the internal-limits canon, or both”) shall presents of that intention is the is the intention that of presents shall powers. those on limitations among the than rather powers merated founding of the Republic. founding 42938-lcb_24-4 Sheet No. 35 Side B 02/02/2021 10:18:46 B 02/02/2021 35 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 36 Side A 02/02/2021 10:18:46 , , ? Marbury , provides , provides When they The Judiciary The Judiciary 270 271 Marbury Marbury v. Madison

274 challenged the Judiciary Act Act the Judiciary challenged , 17 U.S. (4 Wheat.) 316 (1819)). (1819)). 316 Wheat.) (4 U.S. , 17 What Are the Facts of

Stuart v. Laird Laird v. Stuart , decided five days after after days five , decided

McCulloch v. Maryland Chief Justice Marshall and his colleagues adhered adhered colleagues his and Marshall Justice Chief

272 (2003).

note 102, at 453 (summarizing Marshall’s views on the status of 260 Stuart v. Laird v. Stuart

269 supra supra 255,

note 71, at 67. at 71, note

, . 275 supra

Part IV.B (discussing , , 5 U.S. at 309. 309. , 5 U.S. at EWMYER OMMENT N C

However, in the opinion of the Court, responding to that objection to to objection to that responding the Court, of opinion in the However,

. HAYER

See infra See (1803). 299 299, Cranch) 5 U.S. (1 Laird, v. Stuart T Id. Id. For unknown reasons, Chief Justice Marshall recused himself. He decided had the case Stuart See See 273 268 To this objection, which is of recent date, it is sufficient to observe, that prac- with commencing several years, of for and acquiescence a period under it tice has and answer, irresistible an affords judicial system, the of organization the indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate tobe to now not and ought rest, at is question the Of course, controlled. shaken or be disturbed. As discussed below, Marshall relied on the historical precedent of the First First the of precedent the historical on relied Marshall below, discussed As ONST 272 270 271 273 275 268 269 274 M K to the original constitutional determination of their predecessors: the Justices con- the Justices predecessors: their of determination constitutional original to the court as circuit sit to be required they that unconstitutional it think to tinued judges.

agreements withNative American tribes as, “[w]hat applied to England also appliedUnited to the decided five days previously, when the Court struck down a different provision of of provision a different down struck Court when the previously, days five decided learned that the Judiciary Act of 1789 would require that Supreme Court Justices Court Justices Supreme that require would of 1789 Act the Judiciary that learned to wrote others Jay and Chief Justice John courts, circuit on the as judges also serve unconstitutional. was Act the that claiming Washington, President The Court uses unusually forceful language (“indeed,” “[o]f course,” and “too “too and course,” “[o]f (“indeed,” forceful language The Court uses unusually Act based 1802 the in upholding or controlled”) shaken be to obstinate strong and in force less much had usage Act. Historical the 1789 from on precedent

20 C as a Circuit Court judge, but the Justices did not regularly recuse themselves in such regularlyas a Circuit themselves in such did not Court recuse judge, but the Justices circumstances. Sanford Levinson & Jack M. Balkin, 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1197 MARSHALL'S 2020] inter- as tribes American Native the with agreements their treated had The British other- do States should the United why no reason there was agreements; national wise. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM the Judiciary Act of 1802, Justice Paterson wrote as follows: as wrote Justice Paterson 1802, of Act the Judiciary of 1802, which reintroduced it. reintroduced which of 1802, Act of 1801 was to end the practice, and and Act the practice, was to end 1801 of Bank of the United States in upholding Congress’s power to create the second Bank create second Bank to power the Congress’s in upholding States BankUnited of the States. United of the States.”). another example of the Court’s reliance on historical precedent. on historical reliance the Court’s of example another C Y 42938-lcb_24-4 Sheet No. 36 Side A 02/02/2021 10:18:46 A 02/02/2021 36 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 36 Side B 02/02/2021 10:18:46

. M K it EV C Y note R

Such Stuart L.

. 276 There is is There supra supra ipse dixit ipse dixit

Marbury , AND 280 This incon- This 279 , Marshall cited , 52 V turned on turned ONSTITUTION As Caleb Nelson has has Nelson Caleb As C note 103,note at 380 (“Marshall’s . Non-hierarchical meth- 281 thus refused to exercise judicial judicial refused exercise thus to OOD vel non G supra supra

, Stuart Cohens v. Virginia v. Cohens ipse dixit a bold and plaina bold usurpation, to which the EWMYER commitments decide cases. cases. decide commitments The Congress that passed The Congressit, that Marshall d promulgated as evidence of the Framers’ the Framers’ of evidence as d promulgated , he held that the same Act unconstitution- the same that , he held 277 ***** ***** the common law novel to the and extraordinary task of risdiction to the Supreme Court. Supreme the to risdiction RIGINALISM AND THE O ipse dixit

, . Where the Justices can choose the interpretive mo- the interpretive can choose Justices the . Where Marbury note 48, at 2648,(“As note chief at justice [Marshall] assimilated the familiar APPAPORT

note 84,(“The at 297 Court in Marbury R

, Marshall treated Section 25 of the Judiciary Act of 1789, 1789, of Act Judiciary the of 25 Section treated , Marshall & supra And yet, in supra supra , 278 INNIS INNIS Cohens G at 420 (calling the Judiciary Act “a contemporaneous exposition contemporaneous the of Judiciary Act “a 420 the (calling at C OBSON Marbury v. Madison, 5 U.S. (1 Cranch) 138, 176 (1803) (concluding that the the that (concluding (1803) 176 138, Cranch) (1 5 U.S. Madison, v. Marbury H Hobson, M

See See See See See See (1821). 379 264, Wheat.) (6 19 U.S. Virginia, v. Cohens id. See in Historical Perspective: From the Founding Era to the Rehnquist Court In a related version of historical reasoning, in in reasoning, of historical version a related In Perhaps more important than the Marshall Court’s use of historical materials materials historical of use Court’s the Marshall than important more Perhaps 279 281 276 277 278 280 at 166 (observing that the early Supreme Court followed precedent); Thomas R. Lee, Stare Stare Lee, R. Thomas precedent); followed Court Supreme the early that (observing 166 at

and inconsequential and inconsequential in outcome, an to suited best dality struck down a section of the Judiciary Act of 1789 whose previously constitutionality had not 1789 Act of the Judiciary of a section struck down doubt.”). in been constitution” and contending that “[n]ot a single individual, so far as is known, supposed that the of the judgments over appellate jurisdiction Court the Supreme gives the act which part of to be specified, unauthorizedState Courts in the cases therein constitution”); by McCulloch the v. Maryland, 17 316,402 U.S. (1819) (“It would require no ordinary share of intrepidity to assert Congress] was that first adopted a measure the [by constitution gave no countenance.”). to the legislation that the first Congress ha Congress first that the to the legislation intentions. In intentions. as decisions, court state over jurisdiction appellate the Court’s to rise which gave itself. Constitution the from following ju mandamus original extended ally bluster, devoid of legal argument, is a hallmark of is a of argument, hallmark legal of devoid bluster, in determinative as history to treat Court the permits pluralism odological

7, was the tradition of common law adjudication that underpinned its methodology methodology its that underpinned law adjudication of common the tradition was particular. in interpretation constitutional approach to its and in general Decisis commitments. commitments. issue writs to mandamus was of Court not Supreme the to gave that the Judiciary Act authority constitutionally warranted). sistency stronglythe Marshall suggests that Court’s decisions to treat the first Con- authoritative as determinations constitutional gress’s 1198 1198 questioned. been had never which of legality 1789, the of Act the Judiciary REVIEW LAW & CLARK LEWIS 24.4 [Vol. review an against act of Congress that many believed to be unconstitutional, while in Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM noted, included “many eminent members of the Convention which formed the the formed which of the Convention members eminent “many included noted, [C]onstitution.” creating a constitutional law for the new nation.”); N methods of interpreting and adjudicating no dispute that the Marshall Court relied on precedent. on relied Court Marshall the that dispute no constitutional world . . . rested on a common-law foundation.”). constitutional rested on world . . . 42938-lcb_24-4 Sheet No. 36 Side B 02/02/2021 10:18:46 B 02/02/2021 36 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 37 Side A 02/02/2021 10:18:46

. 1, 1,

. EX ni- supra 1025 1025 EV

Raoul , . R EXTUAL

EV T , 85 T , 85 L. See See

. Andrew B. B. Andrew

A L.

. , 87 V . 223, 228 (1983) (1983) 228 . 223, ENN 63, 63–64 (1989) (1989) 63, 63–64 Y ’ EV R

OL P L.

. . A NTERPRETATION UB I , 158 U. P U. , 158 V P

, 69 Originalism for Nonoriginalists for Originalism

J.L.

. 282 ARV 50–61 that the Framers (arguing (1999) . 1, 6 (1980) (maintaining that the Ninth . 1, 5 (2014) (“To secure natural rights is, is, rights natural secure (“To (2014) 5 1, . EV and in the two Privileges and Immu and Privileges two the in and ONSTITUTIONAL of the English unwritten of the constitution, which R ntracts law about the binding nature written of EV

C EVIEW , 12 H , 12 R 286

The Higher Law Background of the Privileges or or The Law Background the Privileges of Higher

L. R , ***** ***** L.

. T The NinthAmendment: It Means What It Says S and Demonstrably Erroneous Precedents Erroneous Demonstrably and

. other originalists, including Justice Clarence Justice including Clarence other originalists, ORNELL constitution); Barnett,constitution); UDICIAL UDICIAL Liberal Originalism: The Declaration of Independence and and Independence of The Declaration Originalism: Liberal J 283 LEV HITTINGTON 66 C 66

, Amendment, AND W written , The text itself hints at such residual rights in the Ninth the Ninth rights in at such residual hints The text itself

, 63 , 63 C E. note 1, at 24 (contending that Marshall’s view of judicial power was was power judicial of view Marshall’s that (contending 24 at 1, note Clarence Thomas, 284 enth

NTENT I supra . amend. X (reserving rights not delegated to the federal government to the government the federal to delegated not rights (reserving X . amend. . amend. IX (reserving rights not delegated to the federal government to the the federal government to delegated not rights (reserving IX . amend. EITH EITH , the T , K , Scott D. Gerber, D. Gerber, , Scott ORK ONST 285 ONST C C RIGINAL

Caleb Nelson, Stare Decisis Decisis Stare Nelson, Caleb O The History and Meaning of the Ninth Amendment

, U.S. See, e.g. See, U.S. See See e.g. See, 1, 1 (2006) (arguing that the Ninth Amendment protects individual that the Ninth Amendment protects 11, (2006) rights that arise under (arguing

The Ninth Amendment Ninth The The Irrelevance of Writtenness in Constitutional Interpretation . While some originalists stress the importance of the Framers’ decision to reduce reduce to decision Framers’ the of importance originalists stress the While some 286 284 285 282 283 EV R M K EANING

(2010) (arguing that virtually nothing follows from the fact that we have a written constitution).have that virtuallywe(2010) follows the fact that from nothing (arguing wanted a written constitution that becould and presented to ratified and that the by the people ills the waswritten for a remedy was fact that it B lacked fixity); (arguing that “the amendment creates newneither rights nor alters the status pre-existingof Thomas, argue that the written Constitution must be understood against a back-a against understood be must Constitution written the that argue Thomas, law. ground of natural Amendment, Amendment was merely declaratory and added no unspecified rights to the Bill of Rights); Russell L. Caplan, L. Constitutional Interpretation Constitution rights is how the natural secure was enacted, and to Constitution the why therefore, be interpreted.”); should declaratory treatment the from moved Court Marshall the that (1999) (concluding 666–81 647, M 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1199 MARSHALL'S 2020] abide should court that a was Republic in the Early view predominant shown, the erroneous. it demonstrably is unless by precedent Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM 10–14 (2001) (discussing Madison’s view of precedent and arguing that Marshall, like Madison, should statutes both a deferential towards and precedents). adopt courts attitude thought the Constitution to writing, the Constitution natural law encroachment). from federal ties Berger, rights”). More recently, originalists have come to view the Ninth Amendment as a repository of of as a repository Amendment Ninth the view originalists to come have recently, More rights”). unenumerated rights. Randy E. Barnett, (defending consultation of higher law as a check on both legislative excess and judicial activism). who to a narrow originalists, textualism,people). Early committed were insisted that the Ninth constitutional text. in the enumerated not rights of a reservoir was not Amendment built upon the foundation of a of case law to a culturebinding of precedent and only overruleddecisions prior based on changed opinions mistaken). factual that rendered prior practices or errors Immunities Clause of the Fourteenth Amendment Coan, note 5, at 629–36 (providing arguments from co see counterargument, extended an For modifications). authorized absent agreements C Y 42938-lcb_24-4 Sheet No. 37 Side A 02/02/2021 10:18:46 A 02/02/2021 37 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 37 Side B 02/02/2021 10:18:46

M K 289 294 C Y ), con- rightful law as raising A judge can present as as present A judge can 291 Fletcher v. PeckFletcher v. . amend. XIV, § 1, cl. 2 (“No § 1, cl. 2 (“No XIV, . amend.

296 ONST , cannot be considered a be considered , cannot C

However, the Contracts Clause was the Contracts was Clause However, 293 compact

, in the words of G. Edward White, Mar- White, G. Edward of , in words the social

288 of the of the Marshall also Contracts grounds Clause found in the of natural law interpretation. law natural of 292 at 624. 624. at Id. : “An act of the Legislature (for I cannot call it a (for I cannot Legislature act the of : “An Dartmouth College Dartmouth note 93, at 604–0593, note at (providing numerous reasons for treating the land principles

note 1, at 1225. 1225. 1, at note rnments differentlyfrom private contracts Contracts of for the purposes authority.” . art. IV, § 2 (“The Citizens of each State shall be entitled to all Privileges supra Marshall stressed the importance of the written Constitution. written of the the importance Marshall stressed , Marshall’s reliance on natural law helps explain capacious his ap- supra 290 ONST at 139 at (holding that Georgia was “restrained, either by general principleswhich at 145. 145. at HITE C great first great

Justice Chase famously gave voice to natural law limits on legislative legislative on limits law to natural voice gave famously Chase Justice W Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810) (subjecting Georgia’s legislative Georgia’s (subjecting (1810) 87, 133 Cranch) (6 U.S. 10 Peck, v. Fletcher at 623–24. White notes that the point mattered little, because Marshall had already had already because mattered little, point Marshall that the notes White at 623–24. at 1227. 1227. at Calder v. Bull Similarly, in in Similarly, 287 Marbury, Marbury, See id. See id. See See Id. U.S. (1798). 388 386, Dall.) (3 3 U.S. Bull, v. Calder Marbury v. Madison, 5 U.S. 137, Cranch) (1 178 (1803)(maintaining that requiring Clinton, Id. See 295 In 293 294 295 296 287 288 289 290 291 292 grants from state gove Clause analysis). only relevant based on an analogy between private contracts and public grants. public and contracts private between analogy an on based relevant only exerciseof legislative power in in power trary the to However, Marshall also recognized natural law as an unwritten background to the to the background an unwritten law as natural also recognized Marshall However, Constitution. of a on number problematic it was when as natural analogy that treated Marshall levels. tinkered andassertion” by a contract charter was “Dartmouth’s that decided shall consideration. prestidigitate to order factswith in the decided in previous cases “that unilateral grants were contracts,” and Dartmouth’s royal charter “was unmistakably a grant.” that courts uphold unconstitutional lawswould subvert the purposes of a written constitution). powers to limitations based on “certain great principles of justice, whose authority is universally acknowledged, that ought not to be entirely disregarded”). institutions, provisions constitution the particular of free the of the by our or to are common United States, from” rendering plaintiff’s land claim null and void). states or to the people). the people). to states or 1200 1200 Clauses. REVIEW LAW & CLARK LEWIS nat- them, identify could we that Assuming powers. interpretive own his proach to 24.4 [Vol. Flexi- application their changes. only time; over not change do law principles ural is one of principles bility the Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

State shall enforce make or law any which shall abridge the privilegesor immunities of citizens of States”). the United and Immunities of Citizens in the several States.”); U.S. a common-sense conclusion a legal proposition about which reasonable minds could could minds reasonable which about proposition legal a conclusion a common-sense treated largely the Court although example, For differ. justice, natural of questions for restrictions state grants. vacating on land 42938-lcb_24-4 Sheet No. 37 Side B 02/02/2021 10:18:46 B 02/02/2021 37 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 38 Side A 02/02/2021 10:18:46 , The The

supra supra

, 301 McCul- Johnson v. v. Johnson EWMYER to reject Justice Justice reject to N and in in and

Gibbons v. Ogden v. Gibbons 300 See also The Antelope As he put it in put he As 297 He thus sought legal arguments arguments legal sought thus He La Jeune Eugenie, 26 F.832, Cas. 834

, as noted above, noted as , that the slave trade was outlawed under 299

***** ***** United States States v. United note 93, 693–703 at (noting Marshall’s insistence in Stuart v. Laird v. Stuart

supra

298 and But see But HITE United States v. La Jeune Eugenie . Moreover, in rejecting strict constructionism in in rejecting strict constructionism . Moreover, text accompanying notes 147–53.accompanying text The Antelope, 23 U.S. (10 Wheat.) 66, 121 (1825) (rejecting an appeal to morality an appeal to (rejecting 121 (1825) 66, Wheat.) (10 U.S. 23 The Antelope, at 590. 590. at : Marbury v. Madison v. Marbury Johnson v. M’Intosh, 21 U.S. (8Wheat.) 543, 572 (1823). Id. supra See (1824). 188 1, Wheat.) (9 22 U.S. Ogden, v. Gibbons See See on the possibility law on separating of and morality). Finally, prudential considerations obviously played a role in Marshall’sa in played role deci- obviously Finally, considerations prudential Interpretive modalities provide a rich palette from which a judge, exercising exercising a judge, which from palette a rich provide modalities Interpretive While Marshall reliedon natural lawarguments in defense of property, he fa- [A]s the title to lands, especially, is and must be admitted to depend entirely depend entirely to be admitted and must is lands, especially, to title [A]s the on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which and man, creature his of mind the on has impressed all things of Creator the which are admitted to regulate, in a greatdegree, the rights of civilized na- also those independence but perfect principles acknowledged; whose tions, is as us given case and has particular in adopted the government own our which decision. our for rule the 298 299 300 301 297 M K

that would facilitate the alternative. alternative. the facilitate that would sions in loch v. Maryland v. loch McIntosh in favor of “those principles of action which sanctioned are by the usages, the national acts, and the general assent, of portion that world the of whichhe considers of himself and to as a part whoselaw appeal the is made”). legal discretion, can choose. As each modality is legitimate, and the law recognizes recognizes law the and legitimate, is modality each As choose. can discretion, legal voredpositivism lawdecisions his over in international natural on and inlaw cases relating to theproperty rights of NativeAmericans. overdeter- was here decision Marshall’s But rights. natural superseded law Positive he Because matters. American Native on rulings his colored prejudices his mined: them to land ceding that believed he savages,” “fierce as Americans Native regarded wilderness.” a country the leave “to be would 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1201 MARSHALL'S 2020] Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM note284 103, at (discussing Marshall’s reliancelegal on positivism in Story’s reasoning in Antelope principles natural of law); W Marshall also endorsed prudential arguments as a general strategy of constitutional of as a arguments constitutional strategy general prudential Marshall also endorsed and the government, cripple “would a construction narrow Where interpretation. Marshall instituted,” be to declared is it which for objects the to it unequal render “then observed, perceive of the propriety we cannot this strict construction.” (D. Mass. 1822) (treating the slave trade as a violation of natural law). C Y 42938-lcb_24-4 Sheet No. 38 Side A 02/02/2021 10:18:46 A 02/02/2021 38 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 38 Side B 02/02/2021 10:18:46 M K . I C Y Chief Madison, not Madison, not sis for choosing 306 (Mar. 21, 2019), https:// (Mar. 21, https:// 2019), McCulloch v. Maryland v. McCulloch LOG B has no legal has ba and and IBERTY IBERTY L choices when forced to choose among among choices when forced to choose

representative. I could have chosen other other chosen have I could representative. cases, and they nicely illustrate the meth- the illustrate nicely they and cases, &

her when the modalities lead to different out- different lead to the modalities her when , L. ipse dixit In the ensuing litigation, Charles Lee, who had had who Lee, Charles In the ensuing litigation, 305 Marbury v. Madison v. Marbury : Institutionalizing Judicial Review : Institutionalizing Judicial Marbury’s judicial commission was oneatfour ofleast 303 note 75, at 4. Constitution. Marshall takes because no risks in so stating, his Supreme , 17 U.S. 122, 202–03 (1819)). The quotation, and others like it, stands stands it, like others and quotation, The (1819)). 202–03 122, 17 U.S. , supra

302 The newly-elected President, Thomas Jefferson, instructed his Secretary his Secretary instructed Jefferson, Thomas President, The newly-elected

304 Marbury v. Madison Marbury v. Michael Rappaport has argued that Marshall was a textualist. Michael Rappaport, Alstyne, Van Id. Id. Id. 1. appointed the peace of new justices 42 of one as named was Marbury William In this Section, I outline the interpretive modalities that John Marshall de- John Marshall that modalities interpretive the I outline In this Section, 302 303 304 305 306 lawliberty.org/chief-justice-marshalls-textualist-originalism/ (quoting from Marshall’s opinion in in opinion Marshall’s from (quoting lawliberty.org/chief-justice-marshalls-textualist-originalism/ v. Crowninshield Sturges unambiguous the to effect should proposition give uncontroversial a court the that only for language of a statute or the Court never confronted an unambiguous constitutional provision. Originalism Textualist Marshall’s Justice 1202 1202 a judge methods, interpretive among no hierarchy REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) anot over approach one interpretive choice no have often they arguments, conclusory avoid to strive judges comes. While addressingwhen complex constitutionalissues first of impression. The Marshall the constitutional to effect give to attempted jurisprudence Court’s constitutional textas the Justices understood 1/13/2021 3:30 PM it. In so doing,mon-law they adjudication, and resortedmade to their trainingin com- served as John Adams’ Attorney General, represented Marbury. represented General, Attorney Adams’ John as served by outgoing President John Adams on March 3, 1801, pursuant to a congressional a congressional to pursuant 3, 1801, on March Adams John President by outgoing 27th. February from act cases as examples of interpretive pluralism at work, and I have come across no Mar- no across come I have and work, at pluralism interpretive of examples as cases sometimes sug- if Marshall’s pluralism, rhetoric even shall such opinion rejects that gests otherwise. ployed in two seminal cases: cases: seminal two in ployed landmark are they because two these chose be- special are cases These IV.A. Part in described have I that pluralism odological also are they but importance, their cause of that were not delivered in the less than twenty-four hours remaining in John Adams’ Adams’ John in remaining hours thanless twenty-four in the delivered not that were these com- wrote State, of as Secretary serving was who John Marshall, Presidency. missions. of State, James Madison, not to deliver the commissions, and Marbury sought an an sought Marbury and the commissions, to deliver not Madison, James State, of notwith- do so to Madison directing Court, Supreme in the mandamus of order standing the President’s wishes. two or more equally valid interpretive options. options. interpretive valid equally more two or B. ApproachesInterpretive in Case Law Marshall’s 42938-lcb_24-4 Sheet No. 38 Side B 02/02/2021 10:18:46 B 02/02/2021 38 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 39 Side A 02/02/2021 10:18:46

, 307 312 and and Mar- 309 315 Marbury There must then be “some then be “some must There 311 From there, Marshall states a series of a series states Marshall there, From 313

at legal wrongs require legal remedies legal require wrongs at legal note 75, at 9–10. 9–10. at 75, note supra Marshalldiscusses first general principles of law. Those common , 5 U.S. at 167–68. 167–68. at U.S. , 5 He then applies the rules about the nature of the writ to Marbury’s to Marbury’s writ of the nature the about rules the applies He then at 164–65 (refusing to accept that all executive actions are to be viewed as as are be viewed to actions to accept at 164–65 (refusing that all executive 308 at 163 (citing Blackstone for the proposition that where there is a right, there must there must a right, is Blackstone that where there (citing the proposition at 163 for 316 Rather, Marshall illustrates, through a series of rhetorical questions, that that questions, rhetorical of a series through illustrates, Marshall Rather, at 164–65. 164–65. at 165. at 166. at 168–69. at at 5. at 310 Id. Id. Id. William Van Alstyne raises an interesting point that Marshall elides.Even if Marbury’s Marbury Id. Id. (1803). 162 137, Cranch) (1 5 U.S. Madison, v. Marbury id. See id. See Marshallbegins constitutional his analysis the second issue with in Marshall next addresses the question of what remedy is available to Marbury. to Marbury. available is remedy what of question the addresses next Marshall the judiciary has the power to determine whether a right has vested; Marbury’s Marbury’s vested; has a right whether to determine power the has the judiciary 311 312 313 314 315 316 307 308 309 310 314 M K

that there can be no general exception for legal wrongs perpetrated by executive executive by perpetrated wrongs legal for exception general no be can that there officers. some executive acts are examinable and others are not. are others and examinable are acts executive some acts. executive over jurisdiction” its of exercise the in the court guide to law rule of which is whether the laws provide a remedy for violation of Marbury’s right to his his to right Marbury’s of violation for a remedy provide laws the is whether which commission. execu- the acts within at hisarrives conclusion: Marshall paragraphs, short In five asis duty a specific “where but examinable” politically only “are discretion tive’s duty,” that of performance the upon depend rights individual and law, by signed partythe injured a has right a to remedy. agents are accountable are law). agents to was If the removal removal. power of have might Jefferson President vested, had commission might be Marbury wrongful, (judgement entitled damages salary) to only be for and not to Van Alstyne, his position. returned to exceptions to the general rule and again citing Blackstone principle that for the King’s even the 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1203 MARSHALL'S 2020] appear counsel. to through refused over him, jurisdiction recognizing the Court’s Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM right to his commission has vested, and therefore he is entitled to a remedy. to entitled is he therefore and vested, has commission his right to propositions: the President has discretion to make an appointment; once that ap- that once appointment; an make to discretion has the President propositions: undo cannot President the and law, by protected is it made, been has pointment it; shall cites to no constitutional authority. He cites to none of the Constitution’s Constitution’s the of none to cites He authority. no constitutional to shall cites and logic what of sense own on his only relies He history. or ratification drafting require. propriety political and Blackstone on reliance in writ the of nature common-law the out laysMarshall Mansfield. principles establish for Marshall both th both for Marshall establish principles be remedy). be remedy). C Y 42938-lcb_24-4 Sheet No. 39 Side A 02/02/2021 10:18:46 A 02/02/2021 39 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 39 Side B 02/02/2021 10:18:46

, M K 317 C Y Mar- Cohens 322 Marbury Cohens v. Vir- Theaffirmative 320 In deciding In deciding . eration places whole categories categories whole places eration with original jurisdiction to issue a a to issue jurisdiction original with

318

h the Constitution granted it original juris- it original granted Constitution the h 321 opinion as a reversal of his textualist reading in in reading textualist his of a reversal as opinion , as a textual matter, by editing the Constitution’s text). the Constitution’s editing matter, by , as a textual ’s logic in later logic opinions ’s In addressing whether, in the 1789 Judiciary Act, Act, 1789 Judiciary in the whether, addressing In Cohens Cohens 319 Marbury

Marbury 323 note 102 6–7 (pointingposition note out that Marshall’s at in Article III must be given a negative or exclusive sense or or sense or exclusive a negative must be given III Article note 102, at 5 (noting that the enum (noting at 5 102, note supra supra , , ORWIN ORWIN and notes that Marshall was, in part, motivated to change his position position his change to motivated part, in was, Marshall that and notes C C at 170–73. 170–73. at 173. at 174. at

324 Id. Id. Id. Id. Id. See (1821). 397–98 264, Wheat.) (6 19 U.S. Virginia, of State v. Cohens See The truth is, that where the words confer only appellate jurisdiction, original original jurisdiction, appellate only confer words where the that is, The truth jurisdiction is most clearly not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally, does not necessarily negative the power to decide upon it on an appeal, if it may originate Court. a different in As Corwin pointed out, Marshall’s textual argument is not entirely convincing: convincing: entirely argument is not textual out, Marshall’s As Corwin pointed On that issue, Marshall begins by ascertaining the meaning of the statute. He He statute. of the the meaning ascertaining by begins Marshall issue, On that , he upheld Section 25 of the Judiciary Act, which granted the Supreme Court Court the Supreme granted Act, which the Judiciary 25 of Section , he upheld 317 318 319 320 321 322 323 324 shall himself abandoned abandoned himself shall Marshall held that the listing of original jurisdiction was exclusive; in exclusive; was jurisdiction of original listing the that held Marshall ginia in whic in a realm jurisdiction appellate follows: as positions two the He reconciled diction. grants of jurisdiction in grants of jurisdiction all.” at operation “no have would they He maintains that mandamus actions will lie with or without express congressional congressional express or without lie with will actions mandamus that He maintains Supreme the from issue can writ the whether is question the but authorization, jurisdiction. original of a matter as Court

1204 1204 questions. political upon intrude not should courts the that noting case, carefully REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM Congress could empower the Supreme Court Court Supreme the empower could Congress writ of mandamus, Justice Marshall’s methodology is describedbest as textualist. jurisdiction. original Court’s the enumerated Constitution the that determines He that upon expand to empowered be to for Congress intended had Framers If the surplusage.” “mere be would III Article of much jurisdiction, Marbury Corwin describes Marshall’s the purpose of the remaining language may simply have been to prevent Congress Congress to prevent been have simply may language of the remaining the purpose from jurisdictionofits stripping Court in particular of cases. categories the could only be harmonized with of cases “beyond the reach of Congress,—surely no negligible matter”). treats the statute as clearly empowering the Supreme Court with original jurisdiction jurisdiction original with Court Supreme the empowering as clearly statute treats the actions. mandamus to hear 42938-lcb_24-4 Sheet No. 39 Side B 02/02/2021 10:18:46 B 02/02/2021 39 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 40 Side A 02/02/2021 10:18:46

or note . For . For 328 Strik-

supra 332 Marshall 331 330 Marbury subject to “such Ex- subject to 326

Congress, relying on the Exceptions on the Exceptions relying Congress, 327

original jurisdiction was not exclusive, was jurisdiction original (stating that the difference between statutory authorization difference (stating that the

Marshall’s textual argument is based on the notion the notion on based is argument textual Marshall’s 333 to the appellate, but to original jurisdiction.” original to but the appellate, to

Moreover, Marbury’s counsel argued that “[t]he writ of of writ “[t]he that argued counsel Marbury’s Moreover, ). note 102, at 4 (noting that the first Congress’s passage of the Judiciary Judiciary the of passage Congress’s first the that 4 (noting 102, at note 329 supra supra at 148–49 (argument of Charles Lee) (setting out the arguments of counsel, counsel, of outarguments the (setting Charles Lee) of (argument at 148–49 , 5 U.S.172 at , . art. III,§ 2, cl.1. Marbury § 2, cl. 2. 2. § 2, cl.

at 7–9 (distinguishing mandamus as a remedy from jurisdictional questions and ONST at 7 (noting Marshall warranted insistence “uponthe necessity of the rule in ORWIN C

id. see also id. see also at 171–72 (discussing the creation of mandamus actions in the Supreme Court for for Court actions the Supreme mandamus in of the creation at 171–72 (discussing art. III, C at 175–76 (emphasis added). 175–76 at seems not to belongto seems not

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 148 (1803) (argument of Charles Lee). Id. Id. Marbury See See U.S. Id. See id. See 325 In addition to textual arguments, there was also historical evidence supporting supporting evidence historical also was there arguments, textual to addition In There are additional textualist responses to Marshall’s position in 330 331 332 333 325 326 327 328 329 M K reviewing the precedents for the Court’s having entertained mandamus suits); Bloch, Bloch, suits); mandamus entertained having Court’s the for the precedents reviewing 143, at 306 (arguing that Marshall and his colleagues knew that Court the had issued writs of a achieve mandamus to order in connection in withthe 1790s precedents pension cases in and in solution political

pensioners); example, the Court’s appellate jurisdiction is enumerated, is jurisdiction appellate Court’s the example, thata constitutional enumerationof the Court’s original jurisdiction negatives the ingly, Marshall refuses todistinguish Marbury’s casefrom the prior mandamus cases statute. by created were that ceptions” as Congress may choose make. to ju- not to and remedies to related mandamus writs of that thought they have may questions. risdictional the Court’s exercise of mandamus. Marshall clearly struggled with the question of of question the with struggled clearly Marshall mandamus. of exercise Court’s the the acknowledges Marshall Marbury. for a remedy provide could Court whether the act a congressional discussing actions, mandamus of hearing practice prior Court’s settle to Court Supreme the in action mandamus a creating 1793 February from questions pertaining to pension status for officers and disabled soldiers. citing cases where the Marshall Court recognized such distinctions). such recognized cases Court citing where Marshall the and congressional silence “is not considered as affecting the case”). 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1205 MARSHALL'S 2020] pur- the Constitution’s undermine would ruling that his original he realized because poses. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM Clause, could empower the Court to exercise original jurisdiction over a category of of a category over jurisdiction original to exercise the Court empower could Clause, Con- the that believed have Congress may jurisdiction. appellate its within claims Court’s the of enumeration stitution’s

mandamus is in the nature of an appeal as to fact as well as to law.” to as well as fact to as appeal an of nature the in is mandamus Act is evidence against Marshall’s understanding of Article III). rejects such arguments rather weakly, saying that “a writ to an officer for the delivery delivery foran officer“a the weakly, writ to that saying rather rejects such arguments and paper, that for action original an sustain to as same the effect in is, paper a of therefore question to major purposes the Constitution”). of major question to C Y 42938-lcb_24-4 Sheet No. 40 Side A 02/02/2021 10:18:46 A 02/02/2021 40 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 40 Side B 02/02/2021 10:18:46

M K ). ). he 338 C Y note supra , 346 note 84, note Marbury supra , Although ARBURY He answers He supra

345 , 341 , M ORWIN 1, 7–13 (Mark A. A. (Mark 7–13 1, ARBURY finds no support in finds support no limited government government limited ELSON M

339 343 , and the Origins of Judicial Judicial of Origins the and Already by 1790, Already Congress OMMENTARY ELSON C 337 was not without antecedent, without not was itutional enumerations had not been been not had enumerations itutional is justified based on “general principlesbased thought on is justified and piracy. and Marbury v. Madison Marbury and constitutional supremacy. OCUMENTS AND 336 D 344

: treason, The Myth of ADISON note 54, note 215 at (recounting an incident in 1795 when Justice 335 M note 102, at 10 (finding no basis for judicial review in the the in review judicial for basis no (finding 10 at 102, note Marshall identifies the issue to be resolved as “whether an an “whether as resolved to be issue the identifies Marshall supra 340 , note 102, at 5. 5. at 102, note supra supra , . art. I, § 8, cl. 6. 6. § 8, cl. I, . art. ASTO supra , , 5 U.S. at 176. , C These principles include: popular sovereignty, popular include: These principles ONST (maintaining that the distinction betweenlimited and unlimited government is at 177 at (calling the alternative “an absurdity too gross to be insisted on”). ORWIN ARBURY VERSUS C

C 342 art. I, § 8, cl. 10. 10. 8, cl. § I, art. 18. 8, cl. § I, art. (observing that the people have an original right to establish principles of government an original establish to government right principles of have that the people (observing M 65–66 (citing Hamilton, Luther Martin, and Eldridge Gerry all supporting judicial

ORWIN at See id. See id. See e.g. See, Id. Id. Id. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). See Marbury Id. Id. C U.S. in in

Congress has express constitutional power to enact criminal penalties relat- penalties criminal enact to power constitutional express has Congress , Justice Marshall’s famous reasoning that “[i]t is emphatically the province and and province the emphatically is “[i]t that reasoning famous Marshall’s Justice 334 344 345 346 336 337 338 339 340 341 342 343 334 335 1 (finding the case especially in light important of “the absenceany clear of plan on the part of

Review review); Scott Douglas Gerber, Douglas Scott review); by its framers to have been embodied in the Constitution”); N Constitution”); the in embodied been have to framers by its constitutional such text but review asserting that embodied in embodied aconstitution, written enactedfurther criminal penalties pursuant to the Necessary and Proper Clause. this question based on “certain principles, supposed to have been long and well es- well and long been have to supposed principles, “certain on based question this tablished.” issue of judicial review, as the matter was settled in favor of judicial review); C

note 84, Gerber & Michael Perhac eds., 2002) (discussing cases endorsing judicial review before abolished if the legislature can set aside written limitations on its powers). that will “most conduce to their own happiness”). to conduce that will “most address the to Wickham, not John Virginia, directed counsel, for Court Wilson, in the Circuit at 1206 1206 exercise could Court the which over actions of categories additional of possibility const other However, jurisdiction. original REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM Marshall’s position on judicial inreview the duty of the judicial department to say what the law is,” law the what say to department judicial the of the duty the Constitution’s framers to provide the Court” with the power of judicial review). of power with the provide framers to the Court” the Constitution’s ing only to counterfeiting, to ing only land.” the of law the become can the Constitution, to act, repugnant 102, at 10–65 (explaining the historical background to judicial review); N the constitutional text. the constitutional treated as prohibiting the exercise of unenumerated powers. As Corwin points points Corwin As powers. unenumerated of exercise the prohibiting as treated out, 42938-lcb_24-4 Sheet No. 40 Side B 02/02/2021 10:18:46 B 02/02/2021 40 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 41 Side A 02/02/2021 10:18:46

The but of the 348

note 75, 75, note 351 [C]onstitu- supra pursuance onal acts that ought to be in which “the grant of power Marshall cites to no prec- Marshall to no cites 349 Marbury Marshall does provide some textual textual some provide does Marshall 352

original nor appellate jurisdiction. appellate nor original Finally, he notes that the Supremacy Clause Clause Supremacy the that notes he Finally, Van Alstyne points out, quite correctly, that the fact fact correctly, that the quite out, points Alstyne Van 354 Second, Marshall cites to the judicial oath of judicial of the oath to cites Second, Marshall of construing silence restricting the Court’s original as note 84, at 63 (noting that Marshall relied on neither authority” and cited only one case in the entire opinion). 353 Marshall probably leaves these textual references for for references textual these leaves probably Marshall

laws, and legislative changes to the evidentiary requirements 78, at 467, 502, 505–06 (Alexander Hamilton) (Clinton (Clinton Hamilton) (Alexander 505–06 502, 467, at 78, (providing, as examples of congressi

. supra 355 O , Marbury Marbury N note 75, at 18 note (distinguishing 75, at betweenlaws clearly in violation of note 104, at 49–50 (contrasting Justice Marshall’s interpretive interpretive Marshall’s Justice (contrasting 49–50 104, at note supra ARBURY Marshall provides numerous outrageous examples of the ab- the of examples outrageous numerous provides Marshall ex post facto ex post facto supra M , 347 , , 5 U.S. at 179 at , 5 U.S. EDERALIST EDERALIST (arguing that “[n]o(arguing legislative act . . the to . contrary Constitution can be valid”

F , 5 U.S. at 178. William William 178. at 5 U.S. , 178. at U.S. , 5 ELSON for the power of courts to have the ultimate power to say what the law law the what to say power ultimate the to have courts of power for the HE HE HEVORY T N Alstyne, Van S 350 at 180. 180. at , Marbury Marbury Id. Id. See Marbury See See See See Once he has asserted judicial review and maintained that any alternative would would alternative any that maintained and review judicial asserted has he Once 352 353 354 355 347 348 349 350 351 , and laws of the United States.” United of the , laws and M K

reduce the written Constitution to nothing, to Constitution written the reduce jurisdiction with his interpretive strategy withjurisdiction his interpretive in the third part of surdities that would arise if courts lacked the power of constitutional review, of constitutional power the lacked courts if arise would that surdities [C]onstitution” are supreme. is. In the very same opinion in which Marshall struck down the portion of the Ju- of the portion the down struck Marshall in which opinion same very the is. In he actions, mandamus over jurisdiction original created purportedly Act that diciary which the Constitu- claims of over a review, category judicial of power the created neither courts the grants expressly tion puts the Constitution first, thus implying that only laws “made in “made laws only that implying first, thus puts the Constitution

for a charge of treason). that the Constitution is written tells nothing about the people us legislatures (or whether or courts Alstyne, Van means. the Constitution what on say the final have to are themselves) 17–18. at reviewed, export duties, duties, export reviewed, as unconstitutional). construe might and lawsthe Constitution that some 1961) ed., Rossiter unlike Marshall’s scandalous hypotheticals, the 1789 Judiciary Act involved no clear no clear Act involved Judiciary the 1789 hypotheticals, scandalous Marshall’s unlike text. the constitutional of repudiation and intentional 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1207 MARSHALL'S 2020] authority. cites no Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM edent and to no authority, despite the availability of Hamilton’s arguments in in arguments Hamilton’s of availability the despite authority, no to and edent Federalist references. First, Marshall notes that Article III gives federal courts power of “cases “cases of power courts federal gives III Article that notes Marshall First, references. the Constitution.” arising under the to “agreeably duties their to discharge pledge judges which in office, tion strategy in the second part of part of in the second strategy is teased from various phrases and inferences”). precedent nor any “other prior judicial courts”). the of province peculiar and proper the laws is the of and that “[t]he interpretation C Y 42938-lcb_24-4 Sheet No. 41 Side A 02/02/2021 10:18:46 A 02/02/2021 41 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 41 Side B 02/02/2021 10:18:46

, M K L.

. C Y AL Hylton v. , 100 C ONSTITUTIONALISM ONSTITUTIONALISM C reasoning. The Mar- The reasoning. The Court also had had also The Court It was by no means nowas It by 359 357 OPULAR P

, 3 U.S. (3 Dall.) 199 (1796), as as (1796), 199 Dall.) , 3 U.S. (3 : ipse dixit The Supreme Court Before John Marshall John Before Court Supreme The Marshall’s famous dictum seems to to seems dictum Marshall’s famous iction and to allow the problem to go go to problem the allow and to iction HEMSELVES 356 and the End of Judicial Restraint Judicial of End the and only appropriate but fore-ordained.

T Ware v. Hylton and other cases in which the Court reviewed the the reviewed Court the cases in which and other

EOPLE P the Court decided two issues. First, it upheld the the upheld it First, issues. two decided Court the HE : Buttressing the National Economy Economy the National Buttressing :

361 , , 358 Scott Douglas Gerber, Gerber, Douglas Scott Judicial Supremacy (maintaining that the predominant view during the Founding era

note 75, at 20–22 (disputing Marshall’s reading of the significance See See at 25–26 (observing that the oath to uphold the Constitution is not is the Constitution uphold to that the oath (observing at 25–26 RAMER well illustrates the power of of power the illustrates well K

id. id. supra D. 8 (2004) at 26–29 (providing readings of Article III’s grant of federal question Every step of the decision is idiosyncratic, but the opinion is is opinion but the idiosyncratic, is decision the of step Every id. L.J. 27, 38–39 (2018) 38–39 27, L.J. (citing ARRY 360 L text accompanying notes 141–46.accompanying text note 45.

, EVIEW EVIEW Larry D. Kramer, Larry R

, 3 U.S. (3 Dall.) 171 (1796), 171 Dall.) (3 3 U.S. , HOMAS HOMAS Van Alstyne, Alstyne, Van McCulloch v. Maryland McCulloch T

McCulloch v. Maryland v. McCulloch . See, e.g. See, supra See supra See (1819). 316 Wheat.) (4 17 U.S. Maryland, v. McCulloch See Scott Gerber provides is curious. judicial review for cite precedents to failure Marshall’s T S

2. In Marbury v. Madison v. Marbury UDICIAL UDICIAL J 358 359 360 361 356 357 . 621,622–23 (2012) (arguing that the Jeffersonian view reviewof judicial predated the EV ison would have ignored any such order, and the Court was powerless to enforce its its enforce to powerless was Court and the order, such any ignored have would ison loomed. impeachment of threat the Meanwhile, decisions. Constitution and did not regard governmental interpretation of to the Constitution be authoritative). structuredstep so as make each to seem not AND shall Court faced an existential crisis in 1803. It had good legal grounds to order the the to order grounds legal good It had crisis in 1803. an existential faced shall Court Mad- James that clear was it but commission, Marbury his issue to State of Secretary of the Supremacy Clause); Clause); the Supremacy of unique to judges); simply could Marshall review. judicial in engaging court the pre-Marshall of examples numerous precedents. those to cited have 14 U. R 1208 1208 in judg- sit to power to the judiciary’s speak actually them of none because the end branches. political the of actions of the ment determine to empowered is department judicial the that reason, than rather assume, Constitution. the to repugnant is act legislative a whether REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) them- without statutes review could judges that generation founding the to clear policymakers. selves becoming 1/13/2021 3:30 PM legality of the Second Bank of the United States, a ruling that should not have been been have not should that a ruling States, United the of Bank Second the of legality was that the people themselves held final interpretive authority over the meaning of the the the meaning of held authority finalover interpretive was themselves that the people Constitution); good legal grounds to refuse to exercise jurisd exercise to to refuse grounds legal good away. Marshall chose to write an opinion in which he passed judgment on the Jef- the on judgment passed he which in opinion an write to chose Marshall away. Mad- order to declined yet and review, of power the asserted administration, ferson isondo toanything. Indoing, so he made use of many of the toolsin his kit of tradition, the English to appeals adjudication, law common modalities: interpretive and textualism, sense, and common to logic to appeal designed questions rhetorical intentionalism. United States constitutionality federal of statutes). well overturning cases the circuit courts decided as in state laws as unconstitutional, and jurisdiction to the courts that do not entail constitutional notjurisdiction entail that do to review congressional of the courts acts). 42938-lcb_24-4 Sheet No. 41 Side B 02/02/2021 10:18:46 B 02/02/2021 41 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 42 Side A 02/02/2021 10:18:46

, , Mar-

ARTISAN 368 365 P Marbury

, his position on positionhis on ENIUS G Unlike Unlike

: 362 Such considerations, Such considerations, Although those prec- those Although 367 364 ADISON He also notes that, when that, also notes He M 366 Madison’sWaiver: Can Constitutional AMES J ed, it led to “embarrassments,” and and “embarrassments,” to it led ed, son having reversed reversed son having 17, 22–23 (2019). (2019). 17, 22–23

IVES OF OF IVES NLINE L O

. EV R HREE

at 404 (summarizing at counsel’s argument that the people T L.

id. . HE T TAN was not clearly partisan, as Madison’s Republican ad- Republican Madison’s as partisan, clearly not was

, , 72 S , 72 The second issue, Maryland’spower to tax the Bank, raised ELDMAN 363 F McCulloch , 17 U.S. at 402. 402. at , 17 U.S. , 17 U.S. at 402. David Schwartz points out that Marshall nonetheless went

at 402–05 the Constitution’s of (reviewing the history ratification and citing to at 401 (referencing counsel’s at 401 (referencing argument that the Constitution act of was “the 369 OAH N at 401. 401. at 611 (2017) (setting out Madison’s position that the bank had been so universally universally so been had bank the that position Madison’s out (setting 611 (2017)

McCulloch Id. Id. id. See id. See Id. See McCulloch Marshall next moves on to the question of sovereignty under the Constitution. the Constitution. under sovereignty of question the to on moves Marshall next is acknowledged Marshall“the thatinsists, argues, government than next rather Marshall notes that the issue was hotly debated in Congress and in Washing- in Congress debated was hotly the issue Marshall that notes After a paragraph of throat-clearing about the weighty issues at hand, Marshall Marshall at hand, issues weighty the about of throat-clearing a paragraph After 365 366 367 368 369 362 363 364 M K RESIDENT entity. an such of constitutionality the for justification tonian the Preamble as evidence that the document emanates from the people). the people). from emanates document the that evidence as the Preamble the authorization for the original First Bank laps First Bank the original for the authorization the Second. created Bank to the First opposed now those the highlypartisan issueof the limits state on sovereignty.

sovereign and independent States”); States”); and independent sovereign the Constitution). of advent before the sovereignty state to powers their surrendered had on to provide constitutional arguments in support of the bank’s legality. His arguments were largely adopted from Hamilton without attribution, “as if to emphasize the Court’s independent right to decide the question afresh.” David S. Schwartz, P 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1209 MARSHALL'S 2020] Hamil- well-developed the and bank a national for precedent the given surprising, Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM shall references Maryland’s contrary arguments but only in order to refute them them to refute in order but only arguments contrary Maryland’s shall references categorically. historical and pragmatic, do not decide the question entirely, but they certainly color color certainly they but entirely, question the decide not do pragmatic, and historical what follows. states. with the not and people the with resided Marshall, for Sovereignty, recognized as constitutionalrecognized that it had become constitutional). the first issue in Madi Bank, Second the ministration established legality. bank’s the ton’s cabinet when Hamilton proposed the first bank. edents include acts “by the judicial department,” the main force of Marshall’s argu- Marshall’s of force main the department,” judicial the “by acts include edents en- policies well-established usurpation,” daring and “a bold absent is that, ment disregarded.” lightly be to not “ought representatives people’s the by acted Liquidation Be Liquidated? Liquidation immediately acknowledges that prior precedents prevent him from considering considering from him prevent precedents prior that acknowledges immediately question. open an a bank incorporate to Congress’s ability C Y 42938-lcb_24-4 Sheet No. 42 Side A 02/02/2021 10:18:46 A 02/02/2021 42 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 42 Side B 02/02/2021 10:18:46

, M K C Y 581

ARNER 571, G

L. A. L ’ Marshall ex- Marshall NT RYAN I 373

. at 419 (repeating the the (repeating at 419 & He further demon- He further UR 377 CALIA CALIA What follows from Mar- from follows What S , 22E see also id. also see 375 NTONIN Marshall cites to no authority for for authority to no cites Marshall 63–65 (2012) (elaborating on the canon canon the on (elaborating (2012) 63–65

376 546 (noting that Marshall asserts rather than 374

EXTS at

T Here, Marshall does some intertextual anal- intertextual some does Here, Marshall EGAL . 11) (finding that the United must11) (finding Nations possess. 372 L note 93, we are expounding.” we are supra He backs up the latter assertion with a reference to to reference a with assertion latter the up He backs

, given. 370 HITE Marshall concedes, as he must, that the enumeration does does enumeration the that must, he as concedes, Marshall Demystifying the ArtInterpretation of W

constitution 371 note 28,at 137 (asserting the Necessary Proper Clause and “is only expressly see NTERPRETATION OF I supra supra , 17 U.S. at 405–06. 405–06. at , 17 U.S.

, HE , Reparation for Injuries Suffered in the Service of the United Nations, Advisory Advisory Nations, United the of Service the in Suffered Injuries for , Reparation T (noting that nothing that nothing (noting thein Constitution, including the Tenth Amendment,

at 409–10 (“The government which has a right to do an act . . . must, according : id. TORY ould favor an interpretation that furthers rather than obstructs the document’s document’s the obstructs than rather that furthers ould favor an interpretation at 402, 404; 404; 402, at

at 406. 406. at 406–07. at 407. at AW S L See, e.g. See, Id. Id. McCulloch Id. See Id. Id. id. See See See Marshall next provides one of the most controversial statements in the corpus corpus the in statements controversial most the of one provides next Marshall 377 370 371 372 373 374 375 376 EADING that one sh Waibel, Michael purpose); Opinion, 1949 I.C.J. Rep. 174, 180 (Apr 180 174, Rep. 1949 I.C.J. Opinion, international standing in order to function as designed); A of Supreme Court opinions, maintaining that a constitution could not “partake of of “partake could not a constitution that maintaining opinions, Court of Supreme must “we admonishment general the providing and code” legal a of prolixity the is a it that never forget ysis, comparing the Constitution to the Articles of Confederation. of Articles the to Constitution the comparing ysis, declaratory, of a truth, which would have resulted by necessary and unavoidable implication from establishingthe very act of the national government, and vesting it with certain powers”). (2011)basis (“The for all in international interpretation text and law treaty with the is said to lie an overarching principle of effectiveness.”). not include the power to establish a bank, but the enumeration does not limit Con- not limit does enumeration the a but establish bank, to power the not include powers gress to those shall’s reasoning is that Congress has implied powers sufficient to establish a bank a bank establish to sufficient powers implied has Congress that is reasoning shall’s Clause. Proper and Necessary the even without to the dictates of reason, be allowed to select the means . . . .”); . .”); . means . select to the allowed be reason, the dictates of to R excludes incidental implied or powers). 1210 1210 supreme “is government federal the that and powers” enumerated of one be to all by action.” of sphere its within REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM plains that the Framers omitted the word “expressly” from the Constitution to avoid avoid to Constitution the from “expressly” word the omitted Framers the that plains combining thus Confederation, of Articles the plagued that “embarrassments” the purposivism. and textualism, intentionalism,

argues his point).argues the Supremacy Clause. the Supremacy his reasoning, but that reasoning is pragmatic, informed by canons of interpretation interpretation of canons by informed pragmatic, is reasoning that but reasoning, his operative The claim. lay can law international and law common the both to which effec- instrument’s an promotes that a reading prefers one that is canon interpretive ends. its of achievement its that hinders over one tiveness argument and calling it “too apparent for controversy”). Justice Story’s treatise is explicit on this point. 42938-lcb_24-4 Sheet No. 42 Side B 02/02/2021 10:18:46 B 02/02/2021 42 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 43 Side A 02/02/2021 10:18:46

385 Marshall, 382

387 Martin began his oral argument with with argument oral his began Martin 380

quickly rejects the latter proposition, con- proposition, latter the quickly rejects 386 The approach suggests a with Socratic exercise, 378

and from state ratification conventions in Virginia Virginia in conventions ratification state from and 379 . article I, §§ 7, 8). 8). §§ 7, I, . article was, in fact, highly controversial. controversial. highly fact, in was, ONST C

383 Marshall acknowledges that “no one word conveys to the the to word conveys one “no that acknowledges Marshall 388 note 93, at 230–41. 230–41. at 93, note or merely are there establishto Congress’s powers passto laws. The Federalist , 17 U.S. at 372 (arguments of Luther Martin). Luther of (arguments 372 , 17 at U.S. 413. at , 17 U.S. , 17 U.S. at 406. 406. at , 17 U.S. Martin was willing to concede to Congress powers of necessary necessary powers of Congress to concede to willing was Martin 384 supra , 381 at 410–11at (arguing that the power is always of incorporation incidental to some (citing U.S. (citing at 419. 419. at at 412 (summarizing Maryland’s argument that the Necessary and Proper Clause “is 413–14. at

HITE McCulloch Id. Id. Id. Id. id. See McCulloch Id. McCulloch id. See W Marshall reads the word “necessary” in the Necessary and Proper Clause Clause Proper and Necessary in the “necessary” word the reads Marshall Having established that Congress has incidental powers, Marshall has Having must then established incidental powers, that Congress Marshall’s opinion does not acknowledge the arguments of Maryland’s Attor- arguments of the acknowledge does not Marshall’s opinion 381 382 383 384 385 386 387 388 378 379 380 M K

and New York, all showing that Federalists in 1787–1789 considered the views ex- views the considered in 1787–1789 Federalists that showing all York, New and the of understanding their to “wholly repugnant” the Bank of in favor pounded Constitution. cluding, “[t]hat a legislature, endowed with legislative powers, can legislate, is a a is can legislate, powers, legislative with endowed a legislature, “[t]hat cluding, questioned.” been have to self-evident too proposition mind, in all situations, one single definite idea,” a notion consistent with Lockean Lockean with consistent a idea,” notion single definite in situations, all one mind, rhetorical questions to which Marshall provided suitable answers while incredu- while answers suitable provided Marshall to which questions rhetorical alternatives. off waiving lously Marshall, referring to textual evidence, textual to Marshall, referring broadly to permit Congress to do whatever was convenient in furtherance of its of furtherance in convenient was whatever do to Congress permit broadly to powers. enumerated

really restrictive of the general rights, which might otherwise be implied”). be implied”). which otherwise might rights, the general of restrictive really implication, but the incorporation of a Bank was no such power and thus was, by was, and thus power such a no was Bank of incorporation the implication, but states. the to reserved Amendment, Tenth the of language the express 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1211 MARSHALL'S 2020] ex- an through enumeration the from follow implied necessarily powers strates that sense. erciseand in common logic from quotations Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM explain the need for the Necessary and Proper Clause. Maryland provides the logical the logical provides Maryland Clause. and Proper Necessary for the the need explain on Congress’s limits establish either “proper” and “necessary” the words that reading implied powers, perhaps wisely, chose not to get down into the weeds of the ratification debates. To To debates. ratification the of weeds the into down get to not chose wisely, perhaps ap- “too was insisted he issue that an that acknowledge to been have would do so parent for controversy” ney General, Luther Martin, who was at the Constitutional Convention, where he he where Convention, the Constitutional at who was Martin, Luther General, ney states. small the of causes the championed substantive power and thus would not be enumerated). C Y 42938-lcb_24-4 Sheet No. 43 Side A 02/02/2021 10:18:46 A 02/02/2021 43 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 43 Side B 02/02/2021 10:18:46 M K 3 C Y in in ,

391 that is, the power to do to do that is, the power t for a discussion of Lockean

395 393 If the Framers had intended intended had Framers the If 396 sary” must be construed according according be construed must sary” . art. I, § 10,2State cl. (“No shall, without. art. I, § Pursuant to that provision, Congress Congress provision, that to Pursuant In one of his few statements touching touching statements few his In one of 398 390 ONST , andaccommodate, to its legislation to cir- C

U.S. see see 145, 149 (A. Lipscomb & A.E. Bergh eds., 1903). . art. 4, § 3. 3. 4, § . art. Opinion Against the Constitutionality of a National Bank notes 213–27 accompanying and tex ONST C EFFERSON

J supra

see He argued that such an interpretation “would swallow up all the the all up swallow “would interpretation an such that He argued , 17 U.S. at 415. 415. at , 17 U.S. 419. at , 17 U.S. , 17 U.S. at 416; 416; at U.S. , 17 Moreover, Marshall contends, if the principle of requiring express express of requiring principle if the contends, Marshall Moreover, 394 “Necessary,” he maintains, must be understood “in a mitigated sense” sense” mitigated a “in understood be must maintains, he “Necessary,” HOMAS HOMAS 392 T 389 Marshall also analogizes the Clause to Article IV, Section 3, which em- 3, which Section IV, Article to Clause the analogizes also Marshall at 382; U.S.

at 416(discussing Congress’s power to punish violations of its laws and to carry the 420. at

at 414; 397 McCulloch Id. Id. Jefferson, Thomas Id. McCulloch Id. Id. Id. McCulloch The decision had broad ramifications for Marshall’s nationalist politics. As As politics. nationalist for Marshall’s ramifications broad had The decision Marshall concludes this section with his structural analysis, noting that the the that noting analysis, structural his with section this Marshall concludes Applying that approach to the Necessary and Proper Clause, Marshall’s analysis analysis Marshall’s Clause, Proper and Necessary the to approach that Applying 391 392 393 394 395 396 397 398 389 390 RITINGS OF because the Framers did not modify “necessary” with “absolutely” in the Necessary Necessary the in “absolutely” with “necessary” modify not did Framers the because elsewhere. they did as Clause and Proper early as 1791, Jefferson had expressed horror at constructions of “necessary” to mean to mean of “necessary” at constructions horror expressed had Jefferson 1791, as early “convenient.” whatever Congress thought was convenient. convenient. was thought Congress whatever it because powers Congress’s on limit a be not could Clause Proper and Necessary rather to Congress grants power of affirmative the Constitution’s among is placed than among limitationsthe on Congress’s powers. enumeration of all congressional powers were extended, it would negate many im- many it would negate extended, were powers all congressional of enumeration question. without exercises plied Congress powers that

mail, which are not provided for in the Article I enumeration). enumeration). I the Article in for provided not are which mail, skepticism. W 1212 1212 skepticism. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM the Clause as a limitation, they would have placed the Clause elsewhere and worded worded and elsewhere Clause the placed have would they limitation, a as the Clause and necessary are as such but passed be shall laws “no a limitation—e.g., it as proper.” repeatsprior his implied arguments about powers. Limiting Congress’s powers to of the the intention been have not could enumeration express the Constitution’s avail to capacity the of legislature the deprive to been have “would so do To drafters. itself itsexercise of reason experience, to cumstances.” powers Congress to make “rules and regulations respecting the territory or other or other the territory respecting and regulations “rules make to Congress powers States.” United the to belonging property on interpretation, Marshall concludes that “neces that concludes Marshall on interpretation, the drafter. of intention” the [and] the context, subject, to “the thethe Consent of Congress, lay any ImpostsDuties or on Imports or except what Exports, may delegated powers, and reduce the whole to one power;” the whole to and reduce powers, delegated be absolutely necessary for executing it’s inspection Laws . . . .”). . . . .”). Laws inspection it’s executing for necessary be absolutely 42938-lcb_24-4 Sheet No. 43 Side B 02/02/2021 10:18:46 B 02/02/2021 43 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 44 Side A 02/02/2021 10:18:46

. The extent to to extent . The 405 Citing Alexander Hamil- Alexander Citing non sequitur 400 .

but the argument is far from self-evident. faris from self-evident. but the argument The federal government’s power to create create to power government’s federal The 399 was whether Maryland could tax the Bank. the Bank. tax could Maryland whether was 404 this Bank this

McCulloch Rather, the argument that the Bank was exempt sounded sounded was exempt Bank the that argument the Rather, 403 could be deemed necessary to the effectuation of a congressional a congressional of to the effectuation necessary deemed be could , 17 U.S. at 422. at , 17 U.S. Maryland was inviting Marshall to a middle ground. The question question The ground. middle a to Marshall inviting was Maryland 401 at 331 (argument of Joseph Hopkinson). Joseph of 331 (argument at Hopkinson). Joseph of (argument 332–33 at 424. at at427–28. 427. at 426. at this Bank McCulloch Id. Id. Id. Id. Id. Id. Marshall here combines question begging with a with begging question combines here Marshall Just as Maryland did not take a categorical stand against Congress’s power to to power Congress’s against stand a categorical take not did Maryland as Just Joseph Hopkinson, arguing on behalf of Maryland, conceded the legality of of legality the conceded of Maryland, behalf on arguing Joseph Hopkinson, The second issue in The second 399 400 401 402 403 404 405 402 M K

in the principle of federal supremacy. federal of principle in the implies a power to preserve, and the states’ power to destroy through taxation, as as taxation, through destroy to power states’ and the preserve, to power a implies power. federal supreme to repugnant if yield must power, the lesser incorporate a bank, it also did not contend that the states enjoyed an unlimited an unlimited enjoyed states the that contend not did also it bank, a incorporate power a be could tax to power the that conceded Maryland Rather, power. taxing was not whether Congress had power to establish a bank but whether the establish- the whether but a bank establish to power had Congress whether not was ment of State of existence “[T]he Congress. to defer to preferred Marshall However, power. the because proclaimed, he question,” on the influence possible no have bankscan pow- enumerated its effectuate to means of choice the Congress gives Constitution ers. 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1213 MARSHALL'S 2020] a bank. like just bodies, corporate are which governments, territorial established had comprehensive” more not “is Clause Regulation and Rules the that argues Marshall Clause, Proper and Necessary the than Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM the First Bank, but argued that the constitutional necessity of a national bank in bank in of a national necessity the constitutional that the First Bank,but argued 1816. in necessity its establish to serve not could 1791 Marshall had to concede up front that no constitutional provision prohibited Mar- prohibited provision constitutional that no front up Marshall to concede had so. doing from yland which Congress can choose its means goes to the heart of the controversy. Given a Given controversy. the of heart the to means goes its choose can which Congress banks state of existence the “necessary,” word of the construction common-sense Congress’s powers to whether be relevant sufficient to the task would most certainly of incorporation to the extended ton’s defense of the establishment of the First Bank, Maryland acknowledged that a a that acknowledged Maryland Bank, First the of establishment the of defense ton’s in banks were state three when only 1791, in needed been have may bank national capital have a banking “we when “necessary” be deemed not could but operation, as country, the over spread so and credit, of good in banks vested amount, a vast to in [Hamilton’s] enumerated the purposes all for and competent to be convenient argument.” C Y 42938-lcb_24-4 Sheet No. 44 Side A 02/02/2021 10:18:46 A 02/02/2021 44 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 44 Side B 02/02/2021 10:18:46 M K C Y Sec-

411 He regarded regarded He . 34). . 34). O 409 N The Federalist Pa- The Federalist . art. I, § 10, cl. 2). 2). cl. § 10, I, . art. ONST EDERALIST C F

HE Marshall ignored Maryland’s ignored Marshall Maryland’s 410 That cannot be denied. However, However, be denied. That cannot ssed) involves reasoning from first first from reasoning involves ssed) t to those of another the “power to to “power the another of those t to The Constitution is built on mutual mutual on is built Constitution The 412 406 Marshall returns to the general principles general principles Marshall to the returns the federal government but only that they could Marshall declared the judicial department department judicial the declared Marshall 415 408 But Marshall rejected this notion as preposter- notion asthis rejected But Marshall 407 at 375 Luther of Martin) (arguing that (argument Maryland id. Maryland also reliespassages on from Maryland counters with a textual argument. Article I, Article argument. counters with a Maryland textual 414 as a whole and states with great confidence that the authors authors the that confidence great with states and a whole as 413

at 340–41 (argument at of Joseph Hopkinson) (pointing out that United States the 416 at 327–28. 327–28. at 349–50. at at 432. 432. at 428. at 430. at (citing U.S. Hopkinson) Joseph of 343 (argument at (citing T Hopkinson) Joseph 345 of (argument at 434. at at 431. 431. at 430. at Id. id. See Id. Id. Id. Id. Id. Id. Id. Id. Id. which clearly state that the federal government and the states have “co-equal “co-equal have states the and government federal the that state clearly which Marshall’s mode of constitutional construction (for it construction is“inter- hard to call itMarshall’s constitutional of mode Finally, Marshall closes with an argument from democratic theory. Congress Congress theory. democratic from argument an with closes Finally, Marshall

410 411 412 413 414 415 416 406 407 408 409 , The Federalist Papers Federalist The tax a corporation in which thefederal government held shares). was merely a shareholder that and Alexander in the Bank Hamilton considered it vital that the Bank be a private institution); was not necessarily states that arguing could tax ous. The people of one state would not entrus not would state one of people The ous. trust between the federal government and the states that one will not exercise its its exercise not will one that states the and government federal the trust between other. the ruin to order in power im- most their confided they have to which a of operations government control the interests.” valuable most and portant tion 10 of the Constitution provides the sole limitation on the states’ powers for for powers states’ the on limitation sole the provides Constitution the tion 10 of imposts any lay Congress, of consent the without shall, [S]tate “‘no revenue: raising or duties on imports or exports, exceptwhat may beabsolutely necessary forlaws.” execut- inspection its ing the slippery slope as unavoidable in this instance—if states can tax one instrument instrument can tax one states instance—if in this unavoidable as slope slippery the all. them can tax they government, federal of the of of

pers 1214 1214 other powers. but to destroy many could so REVIEW LAW & CLARK LEWIS 24.4 [Vol. and fact, in was It only. name in bank federal a was Bank the that argument further shares. held States United the in which institution private a design, by . authority . revenue.” of . in the article Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM principles. States have sovereign power to tax. power sovereign have States principles. pretation” when no text is referenced or discu or referenced is text no when pretation” they can only tax things over which they have authority, and the states have no have no states and the authority, have they which over things tax only they can exe- the for the Union, of government the by employed “the means over authority cution its of powers.” of that work would never countenance state taxation of instruments of the federal federal the of instruments of taxation state countenance never would work of that government. to be unfit to determine “what degree of taxation is . . . legitimate.” . . . is taxation of degree “what determine to unfit to be 42938-lcb_24-4 Sheet No. 44 Side B 02/02/2021 10:18:46 B 02/02/2021 44 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 45 Side A 02/02/2021 10:18:46 The , and 419 Reflections

Marbury 420 Conscience, however, is however, Conscience,

decisions. decisions. Rather, as Jack Balkin Balkin as Jack Rather, 421 But the state of Maryland Maryland of state But the

418 ipse dixit ipse dixit Its representatives can be held to to be held can representatives Its 417 note 47, at 169–75. at 47, note Ipse Dixit Dixit Ipse

Bank. Marshall answered that Congress Congress that answered Marshall Bank. supra supra determinations. Maryland challenged Con- challenged Maryland determinations. nstrainedBobbitt, by conscience. Phillip , Marshall made reasoning does not entail a cynical form of legal of legal form a cynical entail not does reasoning . 1869, 1873–74 (1994) (noting that judges have recourse recourse have judges that (noting (1994) 1873–74 . 1869, Bobbitt,

ipse dixit EV R

this particularthis L. reasoning is unavoidable when a judge has to choose to choose has a judge when unavoidable is reasoning

. ipse dixit McCulloch EX , 72 T ipse dixit turned on two turned

at 435. 435. at 435–36. at

Id. Id. Id. Id. Phillip Bobbitt considers judges co McCulloch The point here is not to criticize Marshall’s conclusions nor to fault him for for fault him to nor conclusions Marshall’s to criticize is not here The point Exposing Marshall’s 417 418 419 420 421 M K

gress’s power establish to has pointed out, judges are always constrained by conventions of legal interpreta- of legal conventions by constrained always are out, judges pointed has the by and Constitution, the to fidelity of duty own their precedent, including tion, beneficiaries of that tax reside in Maryland, and Maryland’s legislature is not ac- not is legislature Maryland’s and Maryland, in reside tax that of beneficiaries the tax. paying be will who other states from people to the countable to conscience when different interpretive modalities conflict). For a For general conscience modalities conflict). discussion to interpretive when the role of different in Bobbitt’s conscience of system, see seeks to impose tax burdens on an entity endorsed by the people as a whole. as people by the endorsed an entity on burdens tax to impose seeks only one of many constraints. Inspired by My Critics My by Inspired 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1215 MARSHALL'S 2020] the and states, the of all of people the because banks on state taxation can impose in Congress. represented are themselves, states Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM

account should the taxes imposed be unreasonable. imposed taxes the should account could do whatever was convenient in furtherance of its enumerated powers, refusing powers, refusing its enumerated of furtherance in convenient was whatever do could toask whether the Second Bank was really necessary. Maryland claimed thepower to impose a particular taxona particularUnited States entity.It sought no general ruled Marshall unlimited. was entities to tax federal states of the powers ruling that reasoning Marshall’s cases, both In entity. States United any tax could state that no interest. national in the of favor rulings categorical towards steered him C. and Discretion, Pluralism, Conclusion: the inconsistency of his approach. Rather, my aim is to demonstrate that the Mar- that demonstrate is to aim my Rather, approach. his of the inconsistency In deciding strategies. interpretive among hierarchy any to wasshall not wed Court when to construe the text narrowly,as in his reading ofArticle IIIin in deciding to construe the text broadly, as in his reading of the enumeration of of of the enumeration reading in his as text broadly, construe the to in deciding congressional powers in realism in which judges treat their own policy preferences as constitutional com- as constitutional preferences policy their own treat which judges in realism mands. Rather, exercise judges that fact The text. the constitutional of renderings possible among unconstrained. are choices those that mean not does choice C Y 42938-lcb_24-4 Sheet No. 45 Side A 02/02/2021 10:18:46 A 02/02/2021 45 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 45 Side B 02/02/2021 10:18:46 M K C Y (Dec. 12, 2016), 2016), 12, (Dec. LOG B note 49, at 204–06 (describing (describing 204–06 at 49, note RIGINALISM supra , , O note 168,109. at e Constitution may be expounded with- expounded may be e Constitution etive strategies “as political as any any opin- as political “as etive strategies that “a new mode of amending the Con- of amending “a mode that new supra

While judges have never been unconcerned been unconcerned never have judges While 424 McCulloch

bjective constraints on constitutional construction). 426 To Marshall’s detractors, his interpretive strategies were were strategies interpretive his detractors, Marshall’s To Justice Roane, Justice Marshalland his contemporaries faced stark choices, but 425 Clear Originalist Cases 422 He then concedes that even those who have done the research research done the who have those that even He then concedes note 194, at 55. 55. at 194, note EFENSE EFENSE 423 D ArguingAbout the Constitution S ’ supra , Balkin,

V. MARSHALL’SGIFT: AUTHORITY WITHOUT FIXITY ARSHALL HEVORY See See Rappaport, Mike Id. M S Some contemporary originalists claim that the Supreme Court’s constitutional constitutional Court’s Supreme the that claim originalists contemporary Some Contemporaries attacked Justice Marshall in the same manner that early early that manner same in the Marshall Justice attacked Contemporaries 422 423 424 425 426 objective, subjective, and inter-su http://originalismblog.typepad.com/the-originalism-blog/2016/12/clear-originalist-casesmike- rappaport.html. clauses of the [Constitution] are simply not clear, unless one has done the extensive has done the extensive simply unless one are not clear, clauses the [Constitution] of research.” historical

1216 1216 opinions of their peers. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM may come opposite to conclusions. primarily motivated by political expediency. Some contemporary commentators commentators contemporary Some political expediency. by primarily motivated interpr Marshall’s calling charge, this echo Court.” Warren ions the of they had an array of interpretive tools that they could use to choose among compel- choose among use to that could they tools interpretive array of anthey had the of understandings with their opinions consistent rendered They ling options. Framers, the of intentions the referenced They purposes. its and text Constitution’s to had they issues that very on the divided were the Framers that knew but they contested, while that, opinions wrote they cases. Still, seminal early, these in decide resolved thus Court Marshall The modalities. interpretive accepted in sounded a non- as judiciary federal of the legacy the enduring establishing while issues fraught Constitu- in the basis without not opinion well-reasoned a which in forum partisan controversies. legal resolve could purposes and general history, text, structure, tion’s that IV in Part argued have I originalist. was Republic Early in the jurisprudence for under- means useful a not provide does it today of conceive we as originalism would there were, it if even But method. interpretive Court’s Marshall the standing that put could Republic Early the during judge a which on occasions few be very Originalism on the noted has Rappaport Mike theorist originalist As use. tool to . . many . interpretation of view minded open and a sophisticated one has “If Blog, with original meaning, judges in the early nineteenth century could not have under- have not could century nineteenth early in the judges meaning, with original mean- original by bound be to inclined were not they or whether research such taken ing. evidence discovered Roane Spencer Thus, Court. Warren the attacked originalists in opinion Marshall’s Justice in stitution” had been found, one in which “th in which one found, had been stitution” it!” into looking ever out 42938-lcb_24-4 Sheet No. 45 Side B 02/02/2021 10:18:46 B 02/02/2021 45 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 46 Side A 02/02/2021 10:18:46 , in in 430 , Cooper 1135, 1171 1171 1135, Court’s first

L.J.

. at crucial at junc- EO Brown v. Board of of v. Board Brown 429 note 84, at 75 (noting Cooper v. Aaron has come to stand for the has come stand for to supra ). ices during the

, Marshall’s continued in- continued Marshall’s in in , in compelling the President President the compelling in , John Marbury

Marbury ARBURY

M 427

, 432 Marbury Marbury tioned in its establishment of judicial of judicial establishment in its tioned Cooper v. Aaron, 107 G ELSON alone renders Marshall a towering figure figure towering a Marshall renders alone

a legal culture in which his Court’s pro- Court’s his which in culture legal a cially the Marshall Court, as a guide to conducting supremacy, announced for the first time in supremacy, announced for the United States v. NixonUnitedv. States note 54, at 314 (noting later Just supra supra note 64, at 1204 (noting that at 316 (finding that four of the eight most cited Supreme Court cases most Court at 316eight cited Supreme (finding the that four of Marbury v. Madison Madison v. Marbury The Irrepressible Myth of of Myth The Irrepressible id. supra hasbeen invoked (andarguably expanded) It did so again in Marbury Marbury 431 Eisgruber, Eisgruber, Toler & Cecere, Cecere, & Toler (articulating the doctrine of judicial of supremacy). the doctrine (articulating .

See Josh Blackman, 18 (1958). 1, 358 U.S. Aaron, v. Cooper Id. “to power Court’s the (asserting (1974) 703–04 683, 418 U.S. Nixon, v. States United See 428 While some of his contemporaries viewed Justice Marshallas partisan, his suc- John Marshall’s Constitution is our Constitution; John Marshall’s Supreme Supreme Marshall’s John our Constitution; is Constitution Marshall’s John 428 429 430 431 432 427 M K

to comply with a Special Prosecutor’s subpoena. Prosecutor’s a Special with to comply that state courts overwhelmingly adopted judicial overwhelmingly adopted review). that state courts

say what the law is” with respect to Executive powers). Executive say what law respect to is” with the cessors within the judiciary considered him an unimpeachable authority and ad- and authority unimpeachable an him considered judiciary the within cessors methodology. his and holdings his both to hered century “relied heavily on theearlyCourt, espe constitutional inquiry”); Court). the Marshall are from 2020] MARSHALL'S CONSTITUTION CONSTITUTION 1217 MARSHALL'S 2020] Telman_EIC_Proof_Complete (Do Not Delete) 1/13/2021 3:30 PM because it gave rise to and remains unques remains and to rise it gave because Court invoked The history. tures in our legal thwarting Arkansas state officials engagedin massive resistance to Education fluence is undeniable. is undeniable. fluence review. (2019) (arguing that the doctrine of judicial in articulated as review judicial of the scope expanded vastly Court is our Supreme Court. He initiated a discursive practice. He shaped our legal legal our shaped He practice. a discursive He initiated Court. our Supreme Court is interpretations but his interpretations, constitutional authoritative system his with founded he because were authoritative through only overcome be Supreme—to and decisive as treated were nouncements proclaim alike non-originalists and originalists Today, amendment. constitutional adjudi- constitutional approach to of Marshall’s guardians to be the true themselves claimsmakecation. such itself some with can legitimacy,which Both signals the under- best is approach that But approach. pluralistic Marshall’s of reach extensive in the after- arisen have not in that in the light and its debates of own terms stood Courts. and Burger Warren of the activism judicial perceived the math of proper role in proper courts of a constitutional system); N C Y 42938-lcb_24-4 Sheet No. 46 Side A 02/02/2021 10:18:46 A 02/02/2021 46 Side Sheet No. 42938-lcb_24-4