1John Marshall: The Great “Originalist”*

Christopher Wolfe
McInerny Center for Thomistic Studies

The United States has enjoyed an unusual degree of political continuity in its

fundamental political framework, with a Constitution now over 220 years old. Even over that

long a period of time, there have been relatively few amendments, though it is arguable that there

have been numerous de facto or informal changes in the document as well. But there has been

only one occasion when the nation seemed to be on the verge of self-destruction: the Civil War.

The Civil War was fundamentally a war to decide which reading of the original

Constitution would prevail. The South took a decidedly “small-f federalist” view of the

document, arguing that the North was trying to “consolidate” the nation, curtailing states’ rights,

contrary to the true meaning of the Constitution. The North took a more nationalist – a “large-F

Federalist” view of it – arguing that the South was illegitimately interpreting the Constitution as

little more than a souped-up Articles of Confederation.

One way to pursue this debate is to look at the constitutional jurisprudence of Chief

Justice John Marshall. Was Marshall a consolidator, reading his nationalizing Federalist views

into a federalist document? Or was Marshall a faithful interpreter of the original Constitution

adopted by Americans (in the various states) in 1787-90?

This is far from being a merely arcane historical issue, since the whole question of how –

or even whether – to interpret the original document is still very much with us. When I first

began to study American constitutional law, in the early 1970s, there was little debate among

legal scholars and political scientists about the process of interpreting the U.S. Constitution. It

* The original version of this chapter was presented at a conference on “Marbury v. Madison and
Judicial Review: A Bicentennial Reconsideration,” sponsored by the Institute of United States
Studies in London, May 29-30, 2003.
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was simply taken as a given that, within very broad limits, judges ought to “do the right thing,”

that is, advance justice, and not worry excessively about the linguistic or interpretive path to

reach that goal. There were certainly some political constraints on judges, and a great deal of

debate about particular constitutional issues, but there was little debate about the process itself.

When, as a wet-behind-the-ears graduate student, eager to discuss interpretive questions, I asked

a leading scholar of judicial politics, at a panel of the American Political Science Association’s

annual meeting, whether a particular line of decisions was justifiable as a matter of

constitutional interpretation, the response I got was something along the lines of: “that’s not an

interesting question.”

That changed, of course. Raoul Berger was the first scholar to challenge the scholarly

establishment, with his Government By Judiciary: The Transformation of Judicial Review, in

1976. In the early 1980s, the Federalist Society was founded as a haven for legal conservatives

in the liberal groves of legal academe. It was difficult for the legal establishment simply to

ignore them, because they had support from a political administration that took their ideas

seriously. Ronald Reagan’s Attorney-General, Edwin Meese, provoked considerable debate by a

series of speeches questioning the legitimacy of contemporary approaches to constitutional

interpretation and judicial review.

In its original form, this debate was between “interpretivists” and “non-interpretivists,”

but gradually the terminology shifted to “originalists” and “nonoriginalists.” I think part of the

reason for this was that “non-interpretivists” realized the rhetorical disadvantages of that term, in

a nation where many ordinary citizens still operate under the illusion that judges’ authority to

strike down law is derived from their interpretation of the Constitution. More importantly,
 3

perhaps, contemporary hermeneutical trends offered more capacious understandings of

“interpretation” that not only were rhetorically more attractive, but also harmonized better with

subjectivist and historicist understandings that were dominant among the legal, as well as other,

intelligentsia.

Originalists – those who view interpretation as a search for the “original intent” of the

law – were somewhat divided on the appropriateness of that denomination. It had the advantage

of tying interpretation to a particular meaning at a particular point in time, thereby providing a

fixed or stable point of meaning. But it also had the rhetorical disadvantage of being tied to

“old” views – in the case of the Constitution, views two centuries old – that many modern

citizens, formed by broader intellectual trends, assume to be inevitably “outdated.” Some

originalists, moreover, are fundamentally textualists, and they would prefer a standard that is

defined less by time than by a text. That is why scholars like myself find the term “original

intent” less descriptive of our position than, say, the “real meaning” approach to constitutional

interpretation. Unfortunately, “real-meaningism” doesn’t flow off the tongue quite as easily as

“originalism,” and the term would be regarded as tendentious by our opponents (who are, after

all, the large majority in the Land of Legal Scholarship), so it seems unlikely that it will supplant

“originalism” as the term of choice.

At any rate, whatever the titles of the opposing sides, the debate continues. For the past

two decades it has been fought out bitterly in the Senate, in the dispute over judicial nominations.

Senate liberals, who generally view judges as “politicians in robes,” not surprisingly want to

know the political views of conservative nominees (though they sometimes refer to them as their

“constitutional views”, as in “will you support Roe v. Wade?”), and they generally suspect
 4

(rightly) that Republicans nominees will not be to their liking. Senate conservatives sometimes

make the case that judges should interpret the law (by which they mean sticking to text and

original intent – which often could have the effect of undermining liberal Court precedents)

rather than make law, and that the Senate therefore has no business questioning them about their

political views. At other times, they engage in their own search for unpopular political positions

that flow from legal views held by nominees. There are no reasons to suspect that this impasse

will end anytime soon.

Both sides in this debate, on occasion, invoke the great Chief Justice John Marshall in

support of their cause. The purpose of my paper is to describe where Marshall stands in the

ongoing debate about originalism. The title of this chapter indicates my answer to that question.

Marshall is the “great originalist.” Nothing could have been a more appropriate description of

him than the epitaph given him by his close friend and colleague, Justice Joseph Story: Marshall

was “the expounder of the Constitution.”

Implicitly, of course, my argument provides an answer to the question of whether the

North or South had the better understanding of the original Constitution. Marshall’s

constitutional jurisprudence was generally rooted in the earlier constitutional interpretation of

Alexander Hamilton and the James Madison of the Constitutional Convention of 1787 (in his

“nationalist” stage – quite different, in important respects, from the later Madison).1 Most

1For more on Marshall’s constitutional jurisprudence, see chapters 2-4 and the Afterword of The
Rise of Modern Judicial Review 2d. ed. (Lanham, Md: Rowman and Littlefield, 1994). Note that
I refer here to Hamilton’s constitutional interpretation, not his more nationalist political thought.
I would also argue that Marshall’s jurisprudence reflected the constitutional thought of other
important but less well-known Convention figures, such as Oliver Ellsworth, who ably
represented the central critical mass of the Convention: all of them desirous of a strong national
government that preserved a broad role for the states.
Marshall rightly rejected the constitutional jurisprudence of Thomas Jefferson. Despite
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importantly, it was rooted in the Constitution itself, properly interpreted according to rules of

interpretation widely accepted in the founding period.

In order to discuss the question of whether Marshall was “the great originalist,” I will

begin by describing what I mean by originalism – and even in describing originalism, I will have

to draw on Marshall.

Originalism

The basic principle of originalism (or “real-meaningism”) is that the interpreter seeks to

ascertain and give effect to the will of the law. To achieve this goal, Americans had the benefit

of rules of construction well developed in British law, as represented by Blackstone’s “Rules for

Statutory Construction” in his Commentaries on the Laws of England. Blackstone points out

there that the goal is to ascertain and give effect to the intention of the lawgiver. That intention

was made known “by signs the most natural and probable.” The five basic signs are “the words,

the context, the subject-matter, the effects and consequences, or the spirit and reason of the law.”

The last sign is particularly important, for “the most universal and effectual way of discovering

the true meaning of the law, when the words are dubious, is by considering the reason and spirit

of it; or the cause which moved the legislator to enact it.”

his public prominence, I think that Jefferson’s understanding of the Constitution was an after-the-
fact effort to change or modify or to “save” a constitution about which he had serious
reservations. (I discuss this in my unpublished dissertation “Constitutional Interpretation in the
American Founding” [Boston College, 1978], pp. 90-101.) The only real “Jeffersonians” at the
Convention – the other delegates from New York – left after the defeat of the New Jersey Plan.
I mention views at the Convention, not because the political philosophy of its members is
in any way authoritative, but because it helps us understand how and why they wrote the text of
the Constitution that was approved by the people in the ratifying conventions and that is
authoritative.
 6

Originalism, therefore, is rooted in textualism – not a simplistic version that considers it

possible to find meaning in isolated words, but a sophisticated textualism that looks to the words

in the context of the document as a whole.1

Marshall, operating within the same common law tradition, describes the the basic

principles of interpretation this way in Ogden v. Saunders:

To say that the intention of the instrument must prevail; that this intention must be
collected from its words; that its words are to be understood in that sense in which
they are generally used by those for whom the instrument was intended; that its
provisions are neither to be restricted into insignificance, nor extended to objects
not comprehended in them, nor contemplated by its framers; is to repeat what has
been already said more at large, and is all that can be necessary.2

If the words are clear, they are simply to be obeyed. If, however, due to the imperfection of

human language, the words are not clear, then “it is the well-settled rule that the objects for

which it [a power] was given, especially when those objects are expressed in the instrument

itself, should have great influence in construction.”3 The method of ascertaining the “objects,”

which are especially important to note in cases where the words bear more than one meaning, is

to examine “the subject, the context, and the intention of the person using [the words].”4

Where do these rules come from? As Hamilton suggested in a remark in The Federalist,

the “rules of legal interpretation are rules of common sense, adopted by the courts in the

1 My discussion of this approach to constitutional interpretation can be found in The Rise of

Modern Judicial Review, rev. ed. (Rowman and Littlefield, 1994), chaps 1 and 2. That original
description was supplemented in response to thoughtful criticism from Michael Zuckert,
emphasizing the dialectical process of moving between the words to be interpreted and various
contexts, especially the document as a whole, which is discussed in the “Afterword: A Response
to Critics”, pp. 381-84.
2 12 Wheaton 213, 332 (1827).
3 Gibbons v. Ogden 9 Wheaton 1, 189.
4 McCulloch v. Maryland 4 Wheaton 316, 415 (1819).
 7

construction of the laws.”5 They are not the result of some kind of abstruse or hidden technical

analysis, but simply a set of commonsense rules for ascertaining the meaning of a speech or

document, put into a more or less systematic order on the basis of generations of experience

applying them in cases.

Probably the single most difficult issue in discerning the outlines of originalism – and the

most important source of division among originalists themselves – is the question of the role of

history. That is, originalism tends to break down into two forms, one of which is more textualist,

and the other of which is oriented toward historical sources of original intention. (Raoul Berger

would be an example of the latter, whereas my own work inclines strongly to the former.6) Even

the textualist variant of originalism requires history in certain limited ways. For example, it is

necessary to know the meaning of the words as they were understood by those who wrote the

law. It is also necessary to know the historical circumstances in which a document was written,

in order to understand the “reason and spirit” of the document’s provisions. But the differences

between the two approaches appear in evaluating the appropriateness of the more common form

of appeal to history, in the form of ascertaining “legislative intent” by looking at the

Constitutional Convention or the Congressional debates on amendments – what I would call

“extrinsic” sources of the lawgiver’s intent.

Marshall’s originalism was, I believe, the textualist variety. This can be seen most clearly

in his discussion of intent in McCulloch v. Md.. In that case Marshall explicitly takes up the

5 The Federalist, ed. Wills (New York: Bantam, 1982), No. 83.
6 For more on this issue, through a discussion of H. Jefferson Powell’s well-known article on
“The Original Understanding of Original Intent” (98 Harvard Law Review 885 [1985]) and
Berger’s critique of it, “‘Original Intention’ in Historical Perspective” (54 George Washington
Law Review 296 (1986]) , see my How To Read the Constitution: Originalism, Constitutional
Interpretation, and Judicial Power (Rowman and Littlefield, 1995), chap. 3.
 8

question of the “intent” of the necessary and proper clause, and finds it by noting the terms of the

clause at issue (the necessary and proper clause) and its placement in the document, arguing to

what he says “must have been the intention” of those who wrote the Constitution, “as manifested

in the whole clause.”7 Of course, Marshall could not have had recourse to the debates of the

Convention of 1787, since only the Journal was available at the time of McCulloch (1819) and

Madison’s Notes on the Convention were only published after his death, in the mid-1830s. But

the facts that Madison’s Notes were a purely personal project and that they were not published

earlier indicate that legislative debates were not accorded authority at the time.

The central reason for this is that the only absolutely clear basis for the authority of the

Constitution is the popular ratification of the text of the document itself. We cannot know with

the same certainty that anyone’s opinion about the meaning of the document was meant to be

given authority. To rely on extrinsic sources of the meaning of the document as the primary

source would be to undercut the clarity and certainty that are such essential elements of the rule

of law. Moreover, the language of the document will inevitably be our only guide in many cases,

as time passes, since the framers (and ratifiers) would not have thought of an increasing number

of the new problems that arise.

To summarize briefly, then, the approach to constitutional interpretation employed in the

early years of American government, and more specifically by John Marshall, is this: an

interpreter is to begin with the words of the document in their ordinary popular usage and

understand them in light of their context. That context includes the words of the provision of

which it is a part, but also extends to the much broader context of the document as a whole,

7 4 Wheaton 316, 415, and 419.

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especially its structure and the subject-matter with which it deals. The intent of provisions is

commonly ascertainable from the terms and the structure of the document, that is, it can be

grasped by an analysis of the document itself, taken as a whole.

An important assumption behind these rules is that the document is not a mere grab-bag

of disparate provisions but a coherent whole, with objects or purposes that can be inferred from it

and in light of which it ought to be read. Constitutional interpretation can, indeed, be likened to a

dialectic that moves back and forth between specific words and phrases of the Constitution and

its broader objects.

The deeper assumption underlying these early rules of interpretation is a fairly traditional

“realist” epistemology: that the Constitution has a fixed, determinate meaning intelligible to

those who give it a fair reading. Communication through human language is possible, the

founders thought, unlike some modern philosophical schools (e.g., deconstructionism) that stress

the inevitable and radical subjectivity of all language, which stands as a bar to genuine

communication. Under modern assumptions, a constitution is unavoidably made up or created

by interpreters (an individual, group, or the society at large), to a greater or lesser extent, as they

go along. The framers of the Constitution, on the contrary, looked to the Constitution as an

intelligible fixed standard that made possible a republican rule of law, rather than of men.

Corollaries of Originalism Rightly Understood

Having given a basic statement of the originalist approach, I want to follow up with a

series of observations about this approach to interpretation. First, the approach, as employed by

Marshall, was not a “mechanical” process, as later scholars sometimes described it (or at least
 10

later forms of it8), nor did its advocates maintain that an answer to every problem could be

deduced from the Constitution (on this, more below). They did think it resulted in a form of

government that is empowered to deal with all those problems. While the Constitution contained

fixed, fundamental principles (substantive and procedural), the founders prudently realized that

there was substantial variability in the specific ways to accomplish those fixed goals, and so they

did not try to hamstring future governments with too-narrow conceptions of either the powers of

government or the limits thereon. Nor was interpretation reduced to merely verbal analysis, as if

it were simply parsing out the words, phrases, sentences, and paragraphs of the document. The

rules of interpretation requiring attention to context, subject matter, and the reason and spirit of

the law guaranteed that statesmanlike interpretation could be done only with a fair measure of

political prudence.9

Second, an accurate understanding of originalism suggests the inadequacy of the

frequently used dichotomy between “strict” or “narrow construction” and “broad” or ”loose

8 The charge of “mechanical jurisprudence” was leveled especially by progressivist and

pragmatic scholars at the laissez-faire Court of the early twentieth century, which (I argue, in The
Rise of Modern Judicial Review, Part II) was a distortion of the traditional approach of Marshall
and other founders, and much more fairly subject to the charge (insofar as a whole code of
constitutional principles limiting government’s economic regulatory powers was “deduced” from
the spare language of the due process clause). These same scholars, however, failed to see the
fundamental differences between the “traditional” (e.g., Marshall) and “transitional” (e.g., the
laissez-faire Court) approaches to constitutional interpretation and judicial review.
9 So, for example, originalism is not subject to the critique often leveled against Justice Owen
Roberts’ description of constitutional interpretation in U.S. v. Butler 297 U.S. 1, at 62: “When an
act of Congress is appropriately challenged in the courts as not conforming to the constitutional
mandate, the judicial branch of the Government has only one duty – to lay the Article of the
Constitution which is invoked beside the statute which is challenged and to decide whether the
latter squares with the former.” Whether Justice Roberts understood this in a simplistic manner
may be debated (it turns on the question of how he understood “to decide whether the latter
squares with the former). The fact is, however, that thoughtful originalism need not, and does
not, consider the process to be mechanical or simplistic.
 11

construction.” At the very least, one should distinguish between a “narrow construction” on one

extreme, a “loose construction” on the other, and a “broad but strict construction” in the middle.

Narrow construction would be the tendency to read the words more narrowly than a fair reading

of the text requires. Loose construction would be the tendency to read them too broadly. Broad

but strict construction is the recognition, flowing from a faithful (or “strict”) interpretation of the

text, of the appropriate breadth of government powers and limitations, without permitting them

to be expanded improperly. The simple dichotomy of strict (or narrow) and broad (or loose)

construction is made to the detriment of clarity. It improperly equates strict construction with

narrow construction and broad construction with loose construction. But, as Marshall showed,

strict construction ought not to be narrow, and broad construction ought not to be loose.

Third, the Constitution understood according to a traditional approach to interpretation is

"adaptable" in a particular sense. Identifying that sense is crucial, since the most obvious and

one of the most frequent criticisms of maintaining the original meaning of the document is that it

will become outdated and inadequate for new and modern circumstances. In what does the

adaptability of the Constitution lie? Not, it should be said in the first place, in the ability of an

interpreter to read new meaning into the document in order to bring it up to date. Rather, the

adaptability lies in three factors: 1) the broad language used by the framers – it provides for

regulating, not horses and buggies or steamships, but "commerce," and permits Congress to

supply the nation, not with muskets and cannon, but with "armies"; 2) the substantial discretion

left to the ordinary political process for choosing which means are best used according to the

particular circumstances of a given time in order to implement the broad powers of the

Constitution, especially in the necessary and proper clause; and 3) the power of amendment, by
 12

which the nation could add new powers to or impose new limits on government, as long as there

was a broad national consensus on doing so.10

This is a point on which there has often been serious misunderstanding of Marshall. For

example, Henry Abraham’s The Judicial Process, at one time a leading textbook in the field,

commented that Marshall

was hardly one to be loath to interpret broadly the Constitution . . . and in

accordance with what Mr. Justice Holmes later referred to as “the felt necessities

of the time.” After all, had not that same Marshall written, in the great

McCulloch v. Maryland decision, that our laws were made under a Constitution

that was “intended to endure for ages to come and, consequently, to be adapted to

the various crises of human affairs”? Probably no Judge did more to this

“adapting,’ and more incisively, than did Mr Chief Justice Marshall, who often

reminded his countrymen that “we must never forget that it is a constitution we

are expounding!” Did he interpret or did he legislate? Undoubtedly both.

But this attempt to prove from Marshall’s own words that he was intentionally a legislator

who “adapted” the Constitution fails to make its case. Marshall’s whole discussion of the need

for adaptation appears in the context of a discussion of Congress’s discretion to choose

appropriate means to give effect to the powers granted by the Constitution. There is no word in

any of Marshall’s writing or opinions that suggests the duty of judges to adapt the Constitution.11

10 As Martin Diamond pointed out in The Founding of the Democratic Republic (Itasca, Ill.: F.E.
Peacock Publishers, 1981), the amendment process requires, above all, a nationally-distributed
majority.
11 Judicial adaptation came later – for example, in Woodrow Wilson’s Constitutional
Government in the United States (New York: Columbia University Press, 1908).
 13

The recognition that “it is a constitution we are expounding” is no advocacy of judicial

legislation, for an interpreter is not a better interpreter for failing to ask whether he is interpreting

a will, a deed, or a constitution – in fact he will do a poorer job of “merely” interpreting if he

does not recognize the subject matter with which he is dealing.

There could be a lengthy discussion of whether the Constitution’s adaptability – its

adaptability rather than its being adapted, as the founders (including Marshall) understood it – is

adequate.12 For now, let me simply say that assertions of the “outdated” character of the

Constitution, understood as it was understood by those who wrote and ratified it, are often found

persuasive by those who wrongly accept the dictates of historicism (the necessary

“timeboundedness” of all human thought) and assume the outdatedness rather than proving it.

And, moreover, all too often allegations of outdatedness are more subtly based on altogether

controversial contentions that amount to little more than the personal preferences of some

particular individual or group, that do not have any special authority in a republican government.

“Outdatedness” may not simply be in the eye of the beholder, but it is controversial enough to

require decision by some prescribed authoritative process, such as constitutional amendment.

Fourth, another danger – possible source of distortion – that many people face when they

evaluate the case for originalism is that they are so impressed by both sides of the argument in

many constitutional controversies that they are tempted to adopt the sophist's position, that there

12 Moreover, even if one concluded that the Constitution is inadequate because it is “outdated,”
there could be an equally long discussion as to which institution of government could make up
for its inadequacy. After all, even if the Constitution does not provide enough power or limits on
power, it is not by any means clear that the judiciary ought to be the branch to "adapt" the
Constitution by adding new powers or imposing new limits. But that is a separate question. For
arguments on the Constitution’s adequacy, see my Judicial Activism, rev. ed. (Rowman and
Littlefield, 1997), especially chapter 1.
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are no right or wrong answers but only more or less plausible (but not compelling) answers. But

the fact that good arguments can be made on both (or several) sides does not prove that there is

no answer. It may mean 1) that the answer can be obtained only with considerable difficulty and

effort, or 2) that the correct answer in some cases is that a given provision can fairly be read in

more than one way. But those are both fair answers.

At this point it is necessary to make an important observation about originalism that is

frequently ignored or overlooked. While originalism is a theory of constitutional interpretation,

it is also a theory of judicial review. It says that the basis for judicial review is textual, that is,

the text of the Constitution. That is so because of the nature of judicial power in a republic. In

Hamilton’s classic formulation in The Federalist, the judiciary “may truly be said to have neither

FORCE nor WILL, but merely judgment.” This view was reflected in Chief Justice John

Marshall’s statement that the judicial department “has no will in any case . . . Judicial power is

never exercised for the purpose of giving effect to the will of the judge; always for the purpose of

giving effect to the will of the legislature; or in other words, to the will of the law.”13 To the

extent that this is true – that judges enforce, not their own will, but the will of the people

contained in the law – the power of the judiciary may be said, despite its relatively undemocratic

structural features (appointment rather than election, and effective life tenure except in the rare

and extreme case of impeachment14), to be consistent with republican principles. The

“democratic credentials” of judicial review – potentially the most undemocratic of judicial acts,

because it involves unelected and relatively unaccountable judges striking down acts of

13 Osborne v Bank of U.S. 9 Wheaton 738, at 866.

14 Actually, impeachment and conviction are “rare” with respect to federal judges in general, but
historically “nonexistent” with respect to a Supreme Court justice (only Justice Samuel Chase
having been impeached, and he was acquitted).
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democratically elected officials – lie in the Court’s decisions being rooted in the Constitution. To

the extent that such acts are “undemocratic,” it is not because of the nature of judicial power, but

because of the limits that constitutionalism itself sets to democracy: the fact that, as Jefferson

observed (not happily), the dead can rule the living in certain respects.

A very strong form of legislative deference – according to which judges will strike down

laws only in “clear” case – is thus a necessary corollary of the traditional argument regarding the

democratic credentials of judicial review.15 Judicial review does not consist in giving meaning to

ambiguous constitutional provisions – provisions that can fairly be read in different ways. On

what grounds, after all, could judges take one of two fair interpretations of the Constitution and,

choosing one of them, override a similarly fair interpretation adopted by the legislature or

executive? If the phrase is genuinely ambiguous, judges would not be in a position to say that

they are exercising judgment– enforcing the will of the Constitution – rather than their own wills.

To forestall a likely misunderstanding, I want to emphasize that there is no pretense here

of equating “clear” cases with “non-controversial” cases. Judges themselves must decide what is

clear, and the simple existence of some other vaguely “possible” interpretation does not prove

that there is no clear meaning in a given case. The point is merely this: if judges, having

carefully engaged in the appropriate methods of interpretation, arrive at the conclusion that the

Constitution is not clear on a point, then they must defer to the legislature. The significance of

15 I say “a strong form,” to distinguish my contention here from the form of legislative deference
exercised by a modern justice like Felix Frankfurter or advocated by a modern commentator like
Alexander Bickel. These men were highly sensitive to the counter-majoritarian implications of
judicial review, and this led them to be very cautious in employing that power. But it was still a
form of judicial discretion. The form of legislative deference I defend is not discretionary, but
mandatory: where there is no clear incompatibility between the Constitution and a challenged
act, judges have no legitimate grounds for judicial review.
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this point as a limit on judicial power may seem to be undermined by the fact that it is the judges

themselves who decide what is clear. That is mistaken, though. There is a large number of cases

where no plausible argument can be made that a provision’s meaning is clear. (For example, the

whole category of substantive due process and large swaths of equal protection comfortably fit

within that description.) The recognition of this form of legislative deference would have a

substantial impact, dramatically limiting the exercise of judicial review.

One final observation on the question of “clarity” in constitutional interpretation: I think

discussion of this point is obscured if one works with a simple dichotomy, assuming either a) that

there is only one possible interpretation of a constitutional provision, or b) that there is a variety

of plausible interpretations (i.e., the provision is ambiguous). Such a dichotomy artificially

constrains analysis and seems to compel one to acknowledge a plurality of reasonable

interpretations if there is not one, uncontroversial interpretation.

But, in fact, a fuller spectrum of interpretive possibilities exists: a) there is only one

possible interpretation of the provision, b) there is a “fair” interpretation of the provision – that

is, in the final analysis, one clearly correct interpretation – despite other possible and initially

plausible interpretations, c) there is a strong, but not decisive interpretation of the provision (one

that seems best, but about which there is some measure of reasonable doubt), d) there are various

plausible interpretations of the provision, and e) there is no plausible coherent interpretation of

the provision.16

I think the traditional approach to constitutional interpretation and judicial review

16 For clarity’s sake, I should point out that what I say of interpreting specific “provisions” may
also apply to “structural interpretation” that is fully grounded in a fair reading of the
Constitution, though not embodied in one provision. A good example of this is the principle of
separation of powers.
 17

(represented by Marshall) held that judicial review was appropriate only in the first two cases,

where there is either a single or a fair interpretation of the Constitution. The requirement of a

“clear” incompatibility between a law and the Constitution typically comes down, under this

view, to a decision as to whether the interpretation of the Constitution is merely a) a “plausible”

or even merely a “strong” one, or b) a “fair” interpretation – the latter justifying judicial review,

but the former not doing so. Making the distinction between a “strong” and a “fair”

interpretation of the Constitution, especially, can be difficult in some cases, and in such cases

there is most likely to be disagreement among those who subscribe to the traditional approach.

(A good example of such a case is Ogden v. Saunders, in which Marshall and his friend and

colleague Bushrod Washington took different sides on the question of prospective bankruptcy

laws and the contract clause.17)

The focus on clarity is important because those who adhere to a traditional or originalist

theory feel the responsibility to say what the law is, not what they want it to be, and they are

aware that giving authority to what is merely one plausible interpretation among a variety of

plausible interpretations of the Constitution seems closer to an assertion of will (as The

Federalist used that term) than judgment. Fidelity to the law is their polestar, and judicial

choices to grant authority to uncertain interpretations of the Constitution does not measure up to

that standard of fidelity.

Marshall and Originalism: A Range of Views

I think it is clear that Marshall’s professed principles were undeniably originalist, and I

17 Ogden v. Saunders 12 Wheat. 213 (1827).

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will not argue that question here. But there remains the debate about whether his actions

corresponded with his professions. Many scholars argue that, whether intentionally or

unintentionally, Marshall departed from originalist principles in his practice. Now the only way

to resolve this debate is to look at the cases he decided and see whether they correspond with

originalist principles. Of course, one could contend that Marshall was an originalist but that he

sometimes “slipped up,” so a few errors would be compatible with the thesis that he was an

originalist. But, if the slip-ups turn out to be a very substantial portion of his constitutional

jurisprudence, then one would inevitably suspect that the causes were systemic, that they flowed

from his whole approach and were not merely an accidental departure from it.

And, of course, there is another question, too, about Marshall and originalism.

Whichever answer is given to the question of whether Marshall is an originalist, we can still go

on to ask whether it was good or bad that he was or was not an originalist.

If we take answers to two possible questions–“was Marshall an originalist?”, and “was it

good or bad that he was, or was not?”–we come up with four possible positions. First, Marshall

was an originalist, and that is good; second, Marshall was an originalist, and that is unfortunate;

third, Marshall was not an originalist, and that’s too bad; and fourth, Marshall was not an

originalist, and it’s a good thing he wasn’t. As it turns out, we can find representatives for each

of these viewpoints.

“Marshall was an originalist, and that is a good thing” represents the position that I

have taken in The Rise of Modern Judicial Review. While most of the book was intended to

focus on the descriptive account of how judicial review in America was transformed from an

essentially interpretive power into an essentially legislative power, the end of the book does
 19

indicate that I think the “traditional” form of judicial review exemplified by Marshall’s approach

was the right one.18 Marshall was, I argue, the greatest representative of that traditional position,

following in the path of Hamilton and Madison (who, generally, despite their differences with

respect to particular constitutional controversies, shared the same general principles), but with

thirty-five years on the bench to become identified, as Story said, as “expounder of the

Constitution.”

“Marshall was an originalist, and that is unfortunate” represents, I think, the view of

Justice Oliver Wendell Holmes, Jr. We can get a mild sense of this from one of his public

speeches, and a more frank expression of it in his private correspondence.

On the occasion of the one hundredth anniversary of the day Marshall assumed the Chief

Justiceship of the United States, Holmes gave a brief speech. Beneath the polite exterior, the

thrust of his remarks is, strikingly, to denigrate Marshall relative to those he would rather

celebrate: “the originators of transforming thought” – among whom Marshall clearly does not

count. Marshall, apparently, did not add much to what had already been done by “Hamilton and

the Constitution” – which testifies to the tie between Marshall and the Constitution, that is, to his

originalism.19

18 It’s not that the conclusion of the book is a surprise. Given that most mainstream scholarship
argues that a traditional or originalist approach to interpretation and judicial review is in
principle impossible, even to make the argument that there ever was a “traditional” era of
American law is to mark oneself as likely an originalist.
19 In John Marshall ed. Mark De Wolfe Howe (University of Chicago Press, 1967), p. 133. Here
are excerpts from the speech:

. . .the beginnings of our national life, whether in battle or in law, lose none of their
greatness by contrast with all the mighty things of later date, beside which, by every law of
number and measure, they ought to seem so small. . . .
If I were to think of John Marshall simply by number and measure in the abstract, I might
hesitate in my superlatives, just as I should hesitate over the battle of Brandywine if I thought of
 20

The more frank assessment appears in Holmes’s private correspondence with Harold

Laski. In their exchange on Marshall, what is as interesting as Holmes’s critical attitude toward

Marshall is his condescension. For him it is was not a case of two intelligent men coming to

reasonable, though different, conclusions. It was a case of Marshall being “outdated,” thinking

in the terms of an earlier and inferior era that had not yet reached the truths embodied in

Holmes’s more modern (and cosmopolitan) view.

Laski (sycophantically) wrote to Holmes that unlike

the judgements of Marshall you give a useful sense of a complex world into

which with great effort a few signposts may be driven while Marshall always

seems to suggest what the world is a damned simple place and he especially

knows all about it. Somewhere lingering in me is a suspicion ( dare I utter it) that

it apart from its place in the line of historic cause. But such thinking is empty in the same
proportion that it is abstract. It is most idle to take a man apart from the circumstances which, in
fact, were his.
I do not mean, of course, that personal estimates are useless or teach us nothing. No
doubt to-day there will be heard from able and competent persons such estimates of Marshall. . .
My own impressions are only those that I have gathered in the common course of legal education
and practice. In them I am conscious, perhaps, of some little revolt from our purely local or
national estimates, and of a wish to see things and people judged by more cosmopolitan
standards . . .
The Federalist, when I read it many years ago, seemed to me a truly original and
wonderful production for the time. I do not trust even that judgment unrevised when I remember
that the Federalist and its authors struck a distinguished English friends of mine as finite; and I
should feel a greater doubt whether, after Hamilton and the Constitution itself, Marshall’s work
proved more than a strong intellect, a good style, personal ascendancy in his court, courage,
justice and the convictions of his party. My keenest interest is excited, not by what are called
great questions and great cases, but by little decisions which the common run of selectors would
pass by because they did not deal with the Constitution or a telephone company, yet which have
in them the germ of some wider theory, and therefore of some profound interstitial change in the
very tissue of the law. The men whom I should be tempted to commemorate would be the
originators of transforming thought . . .
 Marshall is rather an overrated person and that he would have been much happier 21

with sturdy Philistines like Field and Brewer and Peckham than with civilized

creatures like you and Brandeis.20

Holmes responded to these “astute remarks” with a backhanded defense of Marshall:

I only think you should not make it a trait of Marshall especially – it was the mark

of the time, a god-fearing, simple time that knew nothing of your stinking twisters

but had plain views of life. Story and Kent seem to me similar in that was – and I

never have noticed any marked or extraordinary self-satisfaction to Marshall.

They were an innocent lot and didn’t need caviare for luncheon.21

Marshall’s world was too simple and innocent for Holmes – just not very sophisticated. A more

comprehensive view of Holmes’s writing suggests to me that what he had in mind was that

Marshall was naive enough to belief in fixed and permanent “truths,” whereas a later age had

come to recognize that – as Holmes wrote on another occasion – every writing is out-dated in 25,

or 50, years.22 This dovetails nicely with the view that Marshall was not an “originator of

transforming thought” but simply someone who re-stated the “old truths” of the Constitution he

was interpreting.

For Holmes, originalism was a mistake, because it was both impossible and undesirable

to interpret the Constitution in light of what the founders thought and said many years ago. Law,

like life, is subject to the flux of evolution, and must be kept up-to-date by “interpreters.”23

20 Mark De Wolfe Howe, ed. The Holmes-Laski Letters (Cambridge: Harvard University Press,
1953), p. 1007.
21 Ibid, p. 1015.
22 “One of my favorite paradoxes is that everything is dead in twenty-five (or fifty) years. The
author no longer says to you what he meant to say. If he is original, his new truths have been
developed and become familiar in improved form – his errors exploded.” Letter to Benjamin
Cardozo, in Mr. Justice Holmes, ed. Felix Frankfurter, pp. 17-18.
23 For a more general discussion of Holmes on these points, see The Rise of Modern Judicial
 22

“Marshall was not an originalist, and that is a good thing” is the view represented by

Benjamin Cardozo in some remarks on Marshall in his classic The Nature of the Judicial

Process. Commenting on Marshall’s dictum that “[j]udicial power is never exercised for the

purpose of giving effect...to the will of the judge; always for the purpose of giving effect... to the

will of the law,’24 the renowned modern judge said that

[i]t has a lofty sound, it is well and finely said; but it can never be more than

partly true. Marshall’s own career is a conspicuous illustration of the fact that the

ideal is beyond the reach of human faculties to attain. He gave to the constitution

of the United States the impress of his own mind; and the form of our

constitutional law is what it is, because he moulded it while it was still plastic and

malleable in the fire of his own intense convictions.25

Even the form of Cardozo’s statement, however, indicates that “objectivity” was not in fact

Cardozo’s “ideal.” The whole tenor of his remarks on Marshall’s “failure” is written in the

language of admiration (“the fire of his own intense convictions”) rather than of criticism. More

important, Cardozo subtly indicates that this “moulding” is inevitable because the Constitution is

“still plastic and malleable.” Marshall is not an originalist, then, however he may have thought

of himself, because one cannot be faithful to a document that is “plastic and malleable”, that is,

amorphous. One is not faithful to such a document – one shapes it.

What is interesting is that this view of Marshall, which dismisses his own statements as

words “well and finely said” but not to be taken seriously, was a widespread view among, not

Review, chap. 10, especially the discussion of Holmes’s opinion in Missouri v. Holland.
24 Osborn v Bank of U.S. 9 Wheaton 738 (1824), at 866.
25 Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press,
1921), p. 169.
 23

only Marshall’s detractors, but also his admirers. Late-nineteenth century admirers of Marshall,

such as Alfred J. Beveridge and Henry Cabot Lodge, tended to play up Marshall’s greatness and

his statesmanship precisely by portraying him as a judge who molded an ambiguous Constitution

in ways they approved of (i.e., by standing on the ramparts of the Constitution against the rabid

demos, and especially by protecting property rights).26

Finally, “Marshall is not an originalist, and that is unfortunate” was the view of two

very different sorts of critics, and in very different ways. The original exponent of this position

was Thomas Jefferson, who believed that Marshall was desecrating the Constitution, rather than

being faithful to it. Jefferson, like all the founders, believed that the job of the judge was to “say

what the law is,” rather than to shape it creatively. But his view of what the Constitution said

was quite different from Marshall’s. While it would take some discussion to justify the

following assertion, I would summarize Jefferson’s position this way: after an initial critical

evaluation of the Constitution (in letters to Madison), Jefferson gradually accommodated himself

to the reality of the new Constitution and then came to embrace it, largely by reading into it his

own political views, which were clearly not the views dominant in the Federal Convention of

1787. From his perspective, Marshall followed in the path of Hamilton, by trying to transform

what was really a federalist government (a somewhat modified Articles of Confederation) into a

consolidated national government.

Another, later version of this fourth view appears in the work of progressivist scholars

like Charles Grove Haines, a legal historian of the New Deal era, who saw in Marshall the

26 See especially Alfred J. Beveridge’s monumental four-volume biography, The Life of John
Marshall (Boston: Houghton Mifflin, 1916), and also Henry Cabot Lodge, Daniel Webster (New
York: Houghton Mifflin, 1883), chap. 3.
 24

antecedents of the abominable laissez-faire jurisprudence of the early twentieth century.27 By

establishing judicial review and putting it in the service of property rights, Marshall did

incalculable harm to the nation. He was therefore not an originalist (Jefferson had original intent

right, not Marshall), and that was not a good thing.

Of course, there can be some overlap among these four positions, with some views

combining points from more than one of them. For example, it is not unusual to find critics of

originalism basing their attacks partly on the idea that originalism is impossible, because legal

texts are simply too indeterminate. But how is this proved ? Well, by showing that

interpretations of noted originalists are not, in fact, defensible on originalist grounds. That is,

these critics “put on the hat” of an originalist, for the sake of argument, and using originalist or

textualist principles, they claim to prove that decisions by originalists just don’t stand up to

analysis. Of course, in so doing – if they are correct – they show that originalism is possible.

(Nor is this observation undermined if they rest their critiques, not on supposed clear meanings

of the text, but rather on the argument that these texts are indeterminate. They can only show

that the text is “indeterminate” by employing originalist or textualist grounds of analysis that

show the indeterminacy of the text, that is, that the “correct” interpretation of the text is that it is

open to more than one fair interpretation.)

Moreover, the second position (that Marshall was an originalist, and that was bad) often

overlaps to some extent with the third or fourth positions (Marshall was not an originalist),

because the idea that “originalism is bad” overlaps with the idea that “originalism is impossible,”

27 Charles Grove Haines, The American Doctrine of Judicial Supremacy (Berkeley: University
of California Press, 1932) and The Role of the Supreme Court in American Government and
Politics (Berkeley: University of California Press, 1944) – both of them monumental tomes
attacking Marshall and all his evil works.
 25

and hence it is impossible for anyone, including Marshall, really to be an originalist.

Conclusion

John Marshall’s jurisprudence was the greatest historical expression of the traditional

approach to constitutional interpretation and judicial review, which today goes by the name of

originalism (properly understood as a textualist originalism). His authority is often invoked,

however, by proponents of an expansive modern form of judicial power diametrically opposed to

originalism, usually by taking the broad interpretation of McCulloch v. Md. and transforming it

by an infusion of some notion of judicial power to “adapt the Constitution” to the times. Such a

notion of judicial power is entirely foreign to Marshall’s own thought and practice, because it is

incompatible with the political philosophy of the founding and of the American Constitution. We

should honor his memory on the 200th anniversary of Marbury v. Madison by recognizing his

attachment to those republican principles, and by joining in Justice Joseph Story’s accolade to

him as the great “expounder of the Constitution.”