It is not clear what it will take for the Left to come up with a compelling response to originalism.
At the recent Originalism Works-in-Progress Conference, Jeremy Telman presented a paper on the jurisprudence of Chief Justice Marshall. The paper argued that Marshall was not a consistent originalist, but used a variety of modalities (or methods) of argument, of which originalism was merely one. He also criticized Marshall for selecting modalities based on intuition or result rather than based on a consistent methodology.
While an interesting paper, I disagreed quite significantly with it. First, I do not believe Marshall is best understood as simply selecting without constraint which modalities to use. Instead, he had a general approach, which was a form of originalist textualism. Of course, one might find cases over any judge’s career where he does not persuasively follow his general approach or makes mistakes. But to understand the judge’s interpretive approach, one should looks to his express statements about interpretation and his overall pattern of decisions.
In my view, Marshall followed a textualist originalist approach. First, he would follow the unambiguous original meaning of the text unless it produced an absurdity. Second, if the language were unclear, he would follow the meaning that was best supported based on purpose, structure, presumed intent, and other canons.
In Sturges v. Crowningshield, Marshall wrote:
Although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.
One follows the unambiguous text unless an absurdity would result, where absurdity is narrowly defined. But one could depart from the text in cases where the clauses in the Constitution would be inconsistent with one another. In those cases, the language would not be clear and one would have to depart to make them consistent.
Marshall also recognized that constitutional language could be ambiguous. In those cases, one would need to select among the different meanings of the terms. Here, he would look to the purpose, structure and presumed intent. For example, in McCulloch, Marshall recognized that the term “necessary” had a variety of different meanings or usages. In determining which one the Constitution used in the Necessary and Proper Clause, he considered the purposes of the Constitution and its clauses, the structure of the document, and various other matters.
Finally, Marshall also looked to various canons of interpretation to resolve a lack of clarity in provisions. For example, he applied the anti-surplusage canon in Marbury and the rule that “exceptions from a power mark its extent” in Gibbons v. Ogden.
Overall, then, I believe Marshall was a textualism originalist. Of course, that does not mean I agree with all of his decisions or all of his arguments. I do not. But his express statements of methodology, along with the overall pattern of his decisions, in my view, follow a type of originalism.