Persuading the courts to accept originalism is a long-term project, and involves changing the culture of the legal profession.
My co-blogger, Michael Greve, has criticized Mike Ramsey’s and Clarence Thomas’s view of preemption. (Given the numerous people named Michael in this post, I will refer to people by their last names.) Ramsey has respond on his own here. But Greve has also criticized the Originalism Blog (where I also co-blog), saying:
Truth be told, I can’t think of a single Marshall opinion (let alone a Story opinion—Martin v. Hunter’s Lessee or Swift v. Tyson, anyone?) that would pass muster on the originalism blog. The reason is no great mystery: every notable Marshall opinion either starts with or soon turns on the purpose of the statute or constitutional clause at issue. And by the lights of (positivist, clause-bound, textualist) originalism, that is verboten.
I am tempted to respond to Greve’s discussion of originalism (and the Originalism Blog) as Inigo Montoya responded to Vizzini: “You keep using that word. I do not think it means what you think it means.”
Originalism, even the type that exists on the Originalism Blog, is not generally inconsistent with Chief Justice Marshall’s opinions. In fact, I think Marshall was in the main a leading originalist/textualist. Consider, as just one example, Marshall’s opinion in Sturges v. Crowningshield:
Before discussing this argument, it may not be improper to premise, that, 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 dangerons 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.
As this quotation suggests, Marshall believed that the words were extremely important and were to be respected. Thus, Marshall was a textualist. But Marshall also recognized that when the words were ambiguous – or when they conflicted – that reference to structure and purpose should be employed. I generally agree with this last direction. The key point here is that one can only consider purpose and structure when the words are ambiguous!
Of course, Marshall had other fish to fry, and he was, in addition to being an originalist/textualist, also someone who sought to strengthen the national government, the federal judiciary, and economic rights. So Marshall’s other goals may have led him – either consciously or subconsciously – to misinterpret the Constitution, but that does not change the fact that his methodological principles were mainly originalist/textualist.