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Bench Memos

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Every Man His Own John Marshall



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About a thousand Corner posts ago–that is, roughly twelve hours ago–John J. Miller quoted Daniel Ruddy, author of a recent book on Theodore Roosevelt, to the effect that at Sagamore Hill, TR had a portrait of Chief Justice John Marshall in the library.  Ruddy added:

Marshall, of course, was the king of “broad construction” and viewed the law as a living thing open to constructive interpretation.  This was TR’s philosophy, too . . .

Ahem.  The “living Constitution” is an idea of distinctly Progressive provenance, and one should not be surprised to see TR attached to it.  But to attribute it to Marshall, decades earlier, is to commit a large categorical error, and to misread his opinions badly.  He was one of the original originalists.  For the record, he also rejected the idea of “broad construction” in explicit terms, and accusations that he was disingenuous just don’t stick.

The association of Marshall’s view with Roosevelt’s, in short, makes about as much sense as associating the view of Blackstone with that of Oliver Wendell Holmes, Jr.  Blackstone and Holmes both expressed skepticism about the capacity of judges to solve the world’s problems, but that’s about where the similarity ends.



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