Unlike our latter-day advocates of judicial engagement, Marshall saw that the separation of powers embodied principled limits on the judge’s role.
Those who rejected the very premises of the 1787 Constitution, as John Marshall understood them, had to be faced down.
Those troubled by the present state of American politics might take some comfort in seeing how Publius addressed the challenges of his own age.
The Slaughter-House Cases reached the right conclusion for the wrong reasons.
We must approach the Constitution in the spirit that inheres in the document itself.
Natural law-infused originalism shares much with common good constitutionalism in understanding that law and morality are inextricably bound together.
Is common good constitutionalism a type of conservative jurisprudence?
If we are to live together and govern ourselves, we will always have to accept certain risks.
Today’s citizens are capable of making wise additions to the original design so long as they employ the sound constitution-making process of Article V.
The United States has indeed paid a great price for failing to amend its constitution.
We have more to learn from Rawls the man than Rawls the theorist.
Without an imperative to bring precedents into alignment with original meaning, stare decisis becomes the “exception” that swallows the Constitution.
At some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether.
And in any case, Merriam does not identify a theory that would deliver better results than those delivered by originalism.