The Marshall Court and the Originalist's Dilemma

By Peter J. Smith. Full text here.

In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions.  In other words, on at least one account, the original understanding was that constitutional ambiguities would be resolved, among other means, through adjudication.  During his lengthy tenure, Chief Justice John Marshall had ample occasion to fix constitutional meaning, and he presided over a Court that resolved many constitutional ambiguities according to a nationalistic view of the relationship between the states and the federal government.

A majority of the Rehnquist Court consistently advanced an account of the original understanding that was substantially more solicitous of state autonomy.  The Marshall Court’s nationalistic interpretations of the Constitution posed a dilemma for these originalists: either discount the significance of Marshall Court decisions in order to declare an original understanding that valued state autonomy, thus risking infidelity to the original understanding of how constitutional ambiguities would be resolved, or accept the nationalistic implication of Marshall Court decisions and risk undervaluing state autonomy in the quest to define the original understanding.

This Article presents the results of a study of the Rehnquist Court’s treatment of Marshall Court decisions in federalism cases since 1970.  The study demonstrates that the Justices in the federalism majority were substantially more likely to discount the nationalistic implications of Marshall Court decisions—or to ignore them altogether—than were the Justices in the dissent, who were significantly more likely to urge fidelity to the spirit of Marshall Court decisions.  The study suggests that the Justices, while professing fidelity to the principles of originalism, did not robustly, or at least consistently, adhere to the original understanding of how constitutional ambiguities would be resolved.  More important, the study suggests that one of the principal justifications for originalism—that it will constrain the discretion of judges to impose their own views in the course of decision making—is overstated.  In choosing when to treat a constitutional ambiguity as definitively resolved by a decision of the Marshall Court, a Justice can ignore (or accept) pronouncements of that Court according to how well they correspond not only to the Justice’s own conception of the original understanding, but also to the Justice’s instrumentalist goals.