The Originalist's Dilemma

Abstract:     
In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions. In other words, the original understanding was that constitutional ambiguities would be resolved, among other means, through adjudication. During his lengthy tenure, Chief Justice John Marshall had ample occasion to fix constitutional meaning, and he presided over a Court that resolved many constitutional ambiguities according to a nationalistic view of the relationship between the states and the federal government. A majority of the current Supreme Court has consistently advanced an account of the original understanding that is substantially more solicitous of state autonomy. The Marshall Court's nationalistic interpretations of the Constitution pose a dilemma for these originalists: either discount the significance of Marshall Court decisions in order to declare an original understanding that values state autonomy, thus risking infidelity to the original understanding of how constitutional ambiguities would be resolved, or accept the nationalistic implications of Marshall Court decisions and risk undervaluing state autonomy in the quest to define the original understanding. This article presents the results of a study of the Court's treatment in federalism cases since 1970 of Marshall Court decisions. The study demonstrates that the Justices in the federalism majority are substantially more likely to discount the nationalistic implications of Marshall Court decisions - or to ignore them altogether - than are the Justices in the dissent, who are significantly more likely to urge fidelity to the spirit of Marshall Court decisions. The study suggests that the Justices, while professing fidelity to the principles of originalism, have not robustly, or at least consistently, adhered to the original understanding of how constitutional ambiguities would be resolved. More important, the study suggests that one of the principal justifications for originalism - that it will constrain the discretion of judges to impose their own views in the course of decision-making - is overstated. In choosing when to treat a constitutional ambiguity as definitively resolved by a decision of the Marshall Court, a Justice can ignore (or accept) pronouncements of that Court according to how well they correspond not only to the Justice's own conception of the original understanding, but also to the Justice's instrumentalist goals.

Keywords: Originalism Federalism

JEL Classifications: K23

Accepted Paper Series