2011/07/21

Has John Marshall been understood?

Rob Natelson, a former law professor and now a constitutional scholar at the Independent Institute, wrote an article titled "The Greatly Misunderstood Chief Justice John Marshall". He argues that although later jurists have misconstrued three of his key opinions, Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden, they were correctly decided by original understanding. I have to disagree in part, and it goes to the larger question of whether the failures to comply with the Constitution are the fault of the Framers, or of ourselves.

The failure, if it can be called that, was not so much of the Framers, who did the best they could under difficult circumstances, but of their immediate successors for failing to adopt clarifying amendments when court decisions started to drift away from original understanding, and that in part a failure of the founders to pass on that original understanding through legal commentaries. In particular, Jefferson was urged to write such expositions, but he felt it was sufficient to let John Taylor of Caroline do it. Taylor tried, but his analytic and expository ability fell short, as can be seen in his writings on http://constitution.org. Madison felt (inadvisedly in my opinion) that he was still bound by his oath of secrecy concerning the proceedings at the Constitutional Convention, so that he could not publish his Notes on it until after both he and all the other attendees were dead, which did not occur until 1840, after much of the deviation had become entrenched.

About the only remedy for what might be called scary decisis is constitutional amendments. The Bill of Rights were clarifying amendments, as were the Reconstruction Amendments, except for the $20 rule of the 7th and the enforcement powers of the 13th, 14th, and 15th.

The problem is to find ways to word amendments so they target and overturn the key bad decisions or opinions, and the departures based on them. Randy Barnett has tried to do that with a few broad amendments that I don't think have the needed focus. I have instead tried to formulate amendments that are more targeted. See http://amend-it.org . But it is not easy. The framers of the 14th tried to hammer out the wording that would overturn Barron v. Baltimore and Dred Scott v. Sandford, but with the benefit of hindsight we can see the shortcomings of their wording. I'd like to think my wording would work better, but it is difficult to anticipate every way one's words can be misconstrued. The only way to avoid that is to educate one's successors to know how to get the court decisions back on track if they drift away.

I have tried to provide everything anyone might need on http://constitution.org , but I cannot afford to continue that effort without more financial support. The entire site could go down within a month if I don't receive at least $2000 in donations soon.

Rob Natelson tends to interpret the language of the period as though it was written with more care and skill than if was. That doesn't work. A historian has little choice but to sometimes read between the lines and find structure and meanings that were not clear to the writers of that era. Exegesis is a subtle art, and it is not always easy not to cross the line into eisegesis.

See also Unnecessary and Improper .

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1 comment:

RW said...

In what way are the Reconstruction amendments clarifying amendments? They do not clarify or return constitutional practice to original understanding. I believe they are corrective in nature and thus primarily remedial mixed with certain substantive characteristics. For example the 13th Amendment’s abolition of slavery did not clarify the original intent of the framers, it altered it. I enjoy your work and would appreciate further insight into the subject.

R. Moore

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