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In my previous post, I stated that I had found, like many others, that the John Marshall Court was pluralist in its approach to constitutional interpretation. In this post, I explore the consequences of that pluralism. It is possible to be pluralist and yet still embrace a hierarchy of interpretive modalities. On my reading, the Marshall Court’s pluralism was non-hierarchical. No interpretive modality operated as a trump card. The Marshall Court’s pluralism, I have argued, results in what I will call second-order ipse dixit (“because I say so”) judgments.
We think of ipse dixit judgments as devoid of all reasoning. Second-order ipse dixit judgments are not without justification, but they are decisions made at a crossroad where the arguments in favor of one path or another are equally valid. The judge decides simply by choosing one of two equally viable options. Second-order ipse dixit judgements assert the correctness of the chosen path and ignore the alternative or waive it away with incredulity. Marshall used formulations like “[i]t is a proposition too plain to be contested,” “. . . an absurdity too gross to be insisted on,” or “. . . too apparent for controversy. . .” to describe the very matters that he was deciding.
Consider, for example, Marshall’s rendering of “necessary” in the Necessary and Proper Clause. Marshall acknowledged that “necessary” can mean “indispensable,” as counsel urged, but he interpreted “necessary” to encompass means that are merely “convenient, or useful Although he followed that rendering with a structural argument, his initial ipse dixit interpretive instinct colored all that follows. At no point did Marshall acknowledge Luther Martin’s evidence presented in oral argument that even Federalists in ratifying conventions considered the incorporation of a national bank beyond Congress’s powers. Martin’s moderate position permitted the exercise of implied legislative powers, just not implied powers to do anything that was “convenient or useful,” including things that the Framers had expressly ruled out.
Similarly, Marshall’s assertion that the power to tax is the power to destroy need not lead to the result that the States have no power to tax federal entities. Maryland conceded that there might be federal limitations on the States’ power to tax but maintained that its particular tax on the Bank posed no threat to any instrumentality of the federal government. Maryland presented both textual evidence and evidence from the Federalist Papers in support of its view that States and the federal government have co-equal authority to tax for the purposes of raising revenue. Marshall responded by pointing to the Federalist Papers as a whole and announcing that “no man, who has read their instructive pages, will hesitate to admit,” that the authors of the Federalist would never have allowed state taxation of federal instrumentalities. His statement ignores the men who had recently stood before him and argued the contrary, based on specific textual references.
Different modalities of constitutional interpretation often align. For example, the constitutional requirement that the President be at least thirty-five years old is uncontroversial because all interpretive modalities lead to the same conclusion as to the provision’s meaning. But different modalities might also yield different results. For example, a judge might be persuaded that the common understanding of the word “commerce” as used in the eighteenth century connotes only “trade” and not “manufacturing” or “navigation.” However, the same judge might also conclude that the purpose of the Commerce Clause is to empower Congress to regulate the economy in ways that the states cannot or will not. The textual meaning and the purposive meaning are at odds, and the judge must choose between two plausible meanings of the constitutional text. The textual argument cannot defeat the purposive argument, and the purposive argument cannot defeat the textual argument. The choice that the judge makes may be moral or ethical or political or pragmatic or aesthetic in nature, although the judge may choose not to specify those sources, as they are not appropriately “legal.” Only with difficulty can the judge present her conclusions as a legal argument without suppressing or dismissing available counterarguments.
While ipse dixit judgments are less common today, they are not unheard of. Phillip Bobbitt relates a story of a troubled Judge Friendly who sought counsel from Judge Learned Hand on how to resolve a difficult case. According to Bobbitt, Learned Hand’s advice was, “Damn it, Henry, just decide it! That’s what you’re paid for.” In difficult cases, interpretive modalities do not constrain the judge. The case must be decided.
The accumulation of precedent makes true cases of first impression less common, and a judge faced with such a rara avis may find herself constrained by analogous cases or situations. Often cases percolate up through multiple circuits before the Supreme Court has to issue a decisive ruling. That ruling benefits from the experimentation and the slow accretion of wisdom and experience that is a chief advantage of the common-law process.
John Marshall’s Court frequently operated without such constraints, and the issues that the Justices confronted were hotly contested and fundamental. Our Constitution remains, on many matters, the Marshall Court’s Constitution, even though that Court arrived at its conclusions through second-order ipse dixit judgments. Examples of such judgments that remain basic to our law are: the existence and the scope of judicial review; the contours of Congress’s commerce clause powers; the source of federal sovereignty in We, the People, rather than in the states; the extent of the Supreme Court’s original and appellate jurisdiction, including the power to review state court civil and criminal proceedings; and the existence of federal implied legislative powers. The Court’s rulings survive because they were, if not persuasive, at least workable, even to those who did not share that Court’s Federalist leanings.
Second-order ipse dixit judgments are neither originalist nor living constitutionalist. Equally importantly, they are not opposed to originalism or living-constitutionalism. Rather, they arise in the zone of construction where neither the constitutional text nor its drafting and ratification history resolve live controversies. In such circumstances, judgments follow from principles, rooted in a political reading of the Constitution, which judges often state rather than debate and defend. Dissents and concurrences arise out of different principles, also rooted in the Constitution, that lead to a different outcome.
I raise this last point because both originalists and non-originalists both claim to be working in the tradition of the Marshall Court. Given its pluralist method, it is not surprising that the Marshall Court provides material to which both groups can cite with approbation. In my view, however, the contemporary debate over originalism does not provide the lens through which to consider the interpretive methodology of the Marshall Court. It was pluralist, non-hierarchical, and inclined to render second-order ipse dixit judgments with the authority and confidence of a seer.
Jeremy Telman is Director of International Programs & Professor of Law at Valparaiso University Law School. You can reach him by e-mail at jeremy.telman at valpo.edu