Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
I’m very grateful for Mike Ramsey’s forceful response at The Originalism Blog to my earlier post on the (alleged, by me) conflict between modern-day textualism-originalism and John Marshall’s jurisprudence, on the subject of preemption and beyond. I prolong this dispute among friends because I think it matters not only or even primarily for constitutional theorists but for urgent practical reasons. Like, the fate of our economy and the Supreme Court’s ability to get cases right on principle, rather than sheer fortuity. This post deals with general jurisprudence; the next, with preemption.
Was Marbury Right?
Start with a point of agreement: Marshall’s take on the Constitution, which I believe to be the right way to go about this business, starts with the text. (Marshall insisted that all of the text had to be given its full and fair meaning—a proposition that has no consistent proponent on the Supreme Court. I’ll supply evidence at the slightest provocation.) Often, the text will settle the case, and so it did for Marshall. (Mike Ramsey cites two cases to that effect. They’re fairly described as not part of the constitutional canon because they’re obvious.) The hard question, however, and the territory of all the Marshall and Story decisions we study and inflict on law students, is how much you think the text can do and what you do when it runs out.
A militant version of textualism, I suppose, holds that the text has a single best and/or determinate meaning and that anything outside those boundaries is out. But that, apparently, isn’t Mike Ramsey’s position. His more moderate contention is that “at bottom [the Marshall-Story Court’s decisions] all invoke plausible interpretations of specific text.” Indeed they do. But (with the possible exception of Roe v. Wade) is there any Supreme Court decision that doesn’t?
To illustrate the textualist commitments that threaten to disappear in the vortex of “invoke” and “plausible,” look at the case examples that precede the just-quoted statement. Hunter’s Lessee “invokes” the text and reads it “plausibly”; but if it rests on the text, I have misread the opinion and any commentary that I have managed to digest. Brown v. Maryland embraced a dormant Commerce Clause that, by contemporary textualist lights, is completely made-up; equated a tax on importers with a constitutionally prohibited tax on imports, a semantic and economic difference that was as obvious then as it is now; and constructed on that holding an “original package doctrine” that, to say the least, is not easily inferred from the specific text.
And then, there’s the pièce de résistance, Marbury, which (Mike Ramsey writes) “rests in significant part on the language of Article III and Article VI.” Okay—but how “significant”?
That’s on page 74 of the late David Currie’s brilliant The Constitution in the Supreme Court (italics added). Mike Ramsey cites that work for its “gentle-yet-devastating criticism” of Marshall’s “mistakes” and “impulses.” Why, yes: Marshall made mistakes and acted on strategic calculations. (Dartmouth College, to my mind, is very close to the edge; Bank of the United States v. Deveaux—justly forgotten now, but hugely important at the time—looks like an opportunistic mistake.) But that wasn’t Currie’s real point, and Marshall’s reach beyond the text isn’t a matter of occasional lapses. It’s the way he thinks and operates and the basis of his most memorable, foundational opinions. That’s Currie’s take, and giants from McCloskey to White have ably (and more sympathetically) articulated a very similar understanding.
We could, I suppose, debate whether a textualism-originalism that is satisfied with “invok[ing] plausible interpretations of specific text”—a kind of constitutional Chevron doctrine on acid—is still textualism-originalism. The lurch into hermeneutics, however, misses the central question: is a decision pegged on text but “evidently reached on other grounds” ipso facto out of constitutional bounds, or are there constitutional grounds outside the text (and precedent, which Marshall also “disdained”)?
I tend to think that the Chief would have been befuddled by the very question. He routinely relied on the purpose of constitutional clauses, the structure of the document, the general common law understanding, the “genius” of the Constitution and of republican government, the need for constitutional construction (as distinct from mere interpretation), and the Founders’ obvious reliance on a powerful judiciary—not as makeweight or as propellants into outer space, but as the work that the judicial power conferred upon his court not only allowed but demanded. Neither he nor his contemporaries thought of those modes of reasoning as anything but constitutional argument. Yet all those modes, I had thought, are beyond textualist-originalism’s pale.
The point here isn’t methodological but substantive: you need something like Marshall’s structural, constructive reasoning to make the Constitution work. More dramatically: had textualism-originalism reigned in Marshall’s time, there would not be a United States of America. Had the Founders expected, or acted against the backdrop of, a textualist-originalist jurisprudence, they would never have entrusted so much of the Constitution’s elaboration to the judiciary. In that light, it seems to me, it will not do to say, as Mike Ramsey says, that John Marshall’s landmark decisions pose no “fatal objections” to textualism. Even if that were so, it misses the point of Marshall’s jurisprudence and the possibility that we might learn from it—and teach our students—something beyond “how not to do ConLaw.”
By way of a defense Mike Ramsey does not articulate: perhaps, the Marshall Court needed the constructive-functionalist-doctrinal jazz to tackle grand constitutional questions of first impression, to protect the Court’s jurisdiction in a hostile environment, and to stem the states’ centrifugal tendencies. None of this is true today. Thus, while the Marshall Court’s escapades are understandable and even admirable in a way, they are not a model. We can now afford, and we should follow, a jurisprudence that hews closely to the text and nothing but the text.
I actually have some sympathy with this argument (not so surprising, considering that I made it up). But it also exposes textualist-originalism’s resemblance to the holier-than-thou foundations that advertise on NPR: it is parasitic on traditions that it will defend only perfunctorily, if at all. (“Committed to what Andrew Carnegie called real and permanent good”: he was a plutocrat and his conception of the good wasn’t anything like our more enlightened view, but we’ll cheerfully invoke his name and spend his inheritance.) Unlike the robber barons’ fortunes, however, our constitutional capital has been depleting. Textualist originalism shows no awareness of this context, and it seems strangely unperturbed by the question of whether its tenets will suffice to restore the constitutional order. More tomorrow.