Interpretive Pluralism As Well As Ipse Dixit Judgments

Jeremy Telman

In my previous post, I stated that I had found, similar many others, that the John Marshall Court was pluralist inwards its approach to constitutional interpretation.  In this post, I explore the consequences of that pluralism.  It is possible to live pluralist as well as yet silent encompass 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 accept argued, results inwards what I volition telephone telephone second-order ipse dixit (“because I say so”) judgments. 

We holler back 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 inwards favor of 1 path or unopen to other are as valid.  The gauge decides simply past times choosing 1 of 2 as feasible options.  Second-order ipse dixit judgements assert the correctness of the chosen path as well as ignore the alternative or waive it away amongst incredulity. Marshall used formulations similar “[i]t is a proffer as good evidently to live contested,” “. . . an absurdity as good gross to live insisted on,” or “. . . as good apparent for controversy. . .” to depict the rattling matters that he was deciding.

Consider, for example, Marshall’s rendering of “necessary” inwards the Necessary as well as Proper Clause.  Marshall acknowledged that “necessary” tin hateful “indispensable,” as counsel urged, but he interpreted “necessary” to encompass way that are exactly “convenient, or useful  Although he followed that rendering amongst a structural argument, his initial ipse dixit interpretive instinct colored all that follows.  At no betoken did Marshall acknowledge Luther Martin’s testify presented inwards oral declaration that fifty-fifty Federalists inwards ratifying conventions considered the incorporation of a national depository fiscal establishment beyond Congress’s powers. Martin’s moderate position permitted the practise of implied legislative powers, exactly non 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 ability to revenue enhancement is the ability to destroy take away non Pb to the outcome that United States accept no ability to revenue enhancement federal entities.  Maryland conceded that at that topographic point mightiness live federal limitations on the States’ ability to revenue enhancement but maintained that its item revenue enhancement on the Bank posed no threat to whatever instrumentality of the federal government.  Maryland presented both textual testify as well as testify from the Federalist Papers inwards back upward of its sentiment that States as well as the federal authorities accept co-equal potency to revenue enhancement for the purposes of raising revenue.  Marshall responded past times pointing to the Federalist Papers as a whole as well as announcing that “no man, who has read their instructive pages, volition hesitate to admit,” that the authors of the Federalist would never accept allowed nation taxation of federal instrumentalities. His declaration ignores the men who had late stood earlier him as well as argued the contrary, based on specific textual references.

Different modalities of constitutional interpretation often align.  For example, the constitutional requirement that the President live at to the lowest degree thirty-five years former is uncontroversial because all interpretive modalities Pb to the same conclusion as to the provision’s meaning. But dissimilar modalities mightiness also yield dissimilar results.  For example, a gauge mightiness live persuaded that the mutual agreement of the give-and-take “commerce” as used inwards the eighteenth century connotes alone “trade” as well as non “manufacturing” or “navigation.”  However, the same gauge mightiness also conclude that the role of the Commerce Clause is to empower Congress to regulate the economic scheme inwards ways that the states cannot or volition not.  The textual pregnant as well as the purposive pregnant are at odds, as well as the gauge must select betwixt 2 plausible meanings of the constitutional text.  The textual declaration cannot defeat the purposive argument, as well as the purposive declaration cannot defeat the textual argument.  The alternative that the gauge makes may live moral or ethical or political or pragmatic or aesthetic inwards nature, although the gauge may select non to specify those sources, as they are non appropriately “legal.” Only amongst difficulty tin the gauge introduce her conclusions as a legal declaration without suppressing or dismissing available counterarguments. 

While ipse dixit judgments are less mutual today, they are non unheard of.  Phillip Bobbitt relates a even of a troubled Judge Friendly who sought counsel from Judge Learned Hand on how to resolve a hard case.  According to Bobbitt, Learned Hand’s advice was, “Damn it, Henry, exactly create upward one's heed it!  That’s what you’re paid for.” In hard cases, interpretive modalities do non constrain the judge.  The instance must live decided.

The accumulation of precedent makes truthful cases of showtime impression less common, as well as a gauge faced amongst such a rara avis may uncovering herself constrained past times analogous cases or situations.  Often cases percolate upward through multiple circuits earlier the Supreme Court has to number a decisive ruling.  That ruling benefits from the experimentation as well as the tiresome accretion of wisdom as well as sense that is a main wages of the common-law process. 

John Marshall’s Court oftentimes operated without such constraints, as well as the issues that the Justices confronted were hotly contested as well as fundamental.  Our Constitution remains, on many matters, the Marshall Court’s Constitution, fifty-fifty though that Court arrived at its conclusions through second-order ipse dixit judgments.  Examples of such judgments that stay basic to our police trace are: the beingness as well as the reach of judicial review; the contours of Congress’s commerce clause powers; the source of federal sovereignty inwards We, the People, rather than inwards the states; the extent of the Supreme Court’s master as well as appellate jurisdiction, including the ability to review nation courtroom civil as well as criminal proceedings; as well as the beingness of federal implied legislative powers.  The Court’s rulings live because they were, if non persuasive, at to the lowest degree workable, fifty-fifty to those who did non part that Court’s Federalist leanings.

Second-order ipse dixit judgments are neither originalist nor living constitutionalist.  Equally importantly, they are non opposed to originalism or living-constitutionalism.  Rather, they arise inwards the zone of structure where neither the constitutional text nor its drafting as well as ratification history resolve alive controversies.  In such circumstances, judgments follow from principles, rooted inwards a political reading of the Constitution, which judges often nation rather than debate as well as defend.  Dissents as well as concurrences arise out of dissimilar principles, also rooted inwards the Constitution, that Pb to a dissimilar outcome.

 

I heighten this final betoken because both originalists as well as non-originalists both claim to live working inwards the tradition of the Marshall Court. Given its pluralist method, it is non surprising that the Marshall Court provides textile to which both groups tin holler amongst approbation.  In my view, however, the contemporary debate over originalism does non render the lens through which to consider the interpretive methodology of the Marshall Court.  It was pluralist, non-hierarchical, as well as inclined to homecoming second-order ipse dixit judgments amongst the potency as well as confidence of a seer.

Jeremy Telman is Director of International Programs & Professor of Law at Valparaiso University Law School. You tin attain him past times email at jeremy.telman at valpo.edu