Bench Memos

Stone/Marshall Critique of Judicial Conservatism—Part 3

See Part 1 and Part 2

Law professors Geoffrey R. Stone and William P. Marshall claim that their approach to constitutional interpretation—which, as I show in Part 2, beneath its rhetorical camouflage offers an unconstrained view of the role of the judiciary—is faithful to the Framers’ vision of the Constitution. In particular, they argue that the Constitution sets forth “broad principles” that “are not self-defining” and that the Framers

understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, “we must never forget it [sic] is a Constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”*

Accordingly, they argue, “a central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society.”

Let’s try to separate the sound propositions from the unsound ones:

1. Stone and Marshall are certainly correct that the text of the Constitution is “not self-defining.” But that observation ought to lead them to address the question of how the meaning of the text is to be defined or determined. Public-meaning originalists answer that question by looking to the original public meaning of the text—that is, the public meaning of a constitutional provision at the time it was adopted. Stone and Marshall instead simply posit that various phrases “set forth broad principles” that evidently are so abstract that their applications are endlessly malleable.

2. Within broad bounds, the Constitution creates a system of representative government in which it is up to successive generations of Americans to decide how we want to govern ourselves. If that were what Stone and Marshall meant by stating that the Framers “understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time,” I would have no quarrel with them. But it’s clear from their constitutional approach that the “future generations” that Stone and Marshall have in mind are not future generations of citizens, but future generations of judges.

3. I don’t dispute that the Constitution sets forth some “broad principles” and that how its text applies to a particular controversy may be indeterminate. But that reality cuts against, not in favor of, the expansive judicial role that Stone and Marshall advocate. In a system of representative government, judges have legitimate authority to override a democratic enactment only when they have a firm basis for concluding that the democratic enactment is contrary to the meaning of a constitutional provision. So if the meaning of a constitutional provision is in relevant respects indeterminate, judges may not invalidate the democratic enactment. That is the essence of the principle of judicial restraint that Stone and Marshall pay lip service to.

4. Stone and Marshall misappropriate Chief Justice John Marshall to their cause. Properly understood, the famous passages they cite from Chief Justice Marshall’s 1819 opinion in McCulloch v. Maryland cut against, rather than support, the rights-inventing role that the Supreme Court has so often played since the heyday of the Warren Court in the 1960s.

In order to understand what Chief Justice Marshall meant by his famous, but seldom examined, we must never forget …” line, we must never forget the context of that passage.

Chief Justice Marshall was addressing whether Congress had power to establish the Bank of the United States. In the course of determining that Congress did have that power, Marshall stated:

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language.… It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.

In the very next paragraph, after noting the “great powers” set forth “among the enumerated powers of Government,” Chief Justice Marshall observes:

[I]t may with great reason be contended that a Government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the Nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means.… Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means?

What these passages make clear is that Chief Justice Marshall believed that the powers of the national government that were set forth in the Constitution deserved “a fair and just interpretation” that would “facilitate” their “execution.” That is what he meant when he stated that in “considering this question”—a question of Congress’s power—“we must never forget that it is a Constitution we are expounding.” (Note also that Chief Justice Marshall’s invocation of what would “be understood by the public” comports with the tenets of public-meaning originalism.)

In other words, Chief Justice Marshall was not saying, as professors Stone and Marshall and other advocates of the “living Constitution” mistakenly claim, that the nature of a Constitution requires that its rights-conferring provisions be construed expansively. Indeed, such an expansive construction would constrain the government’s exercise of its powers and thus runs counter to the thrust of Chief Justice Marshall’s “we must never forget” line. (To be clear: I believe that rights-conferring provisions should also receive “a fair and just interpretation.” But whereas McCulloch supports the proposition that “a fair and just interpretation” of Congress’s powers is one that is expansive enough to be facilitating, nothing in it supports the different, and countervailing, proposition that “a fair and just interpretation” of rights should also be expansive.)

Chief Justice Marshall’s statement in McCulloch that the Constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs” also means something very different from what Stone and Marshall contend. In context, it’s clear that Chief Justice Marshall is stating that it is the Constitution’s conferral of broad powers on Congress that enables Congress to adapt those powers to the various crises of human affairs. In other words, this passage provides no support for Stone’s and Marshall’s vision of the Court as a perpetual constitutional convention, sometimes construing Congress’s powers narrowly, at other times broadly, sometimes inventing new rights, sometimes restricting old ones, all depending on its own view of how constitutional principles should “evolve as society changes.”

*  *  *

In sum, the constitutional approach that Stone and Marshall advocate—the approach that its proponents in the past, more openly scornful of the Framers, used to call the “living Constitution”—is not remotely faithful to the Framers’ Constitution.

* The point isn’t material to the broader dispute, but for the sake of precision I’ll note that Stone and Marshall omit the “that” that precedes “it” in Chief Justice Marshall’s famous statement in McCulloch v. Maryland. I’ll also note that they put in this single quote, separated only by an ellipsis, two passages that are separated by more than two thousand words.

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