The Anti-Fedralists -- and Marshall

Tue Oct 18 11:59:13 PDT 2005

Gosh. That is a great point, Paul. One of the things that might help rediscover Marshall is a study on his personality. I'm not an expert here -- I know the guy was a social drinker and was not a mythical Hercules (no one is) -- but as I understand it, he had a real desire to try to craft an opinion in such a way that people who opposed it simply could not disagree with. I always find Socratic epistemology in his jurisprudence. This had to have affected how he framed issues and how he went about his craft. The political loophole he may have found in Marbury was, in fact, a giant and a gem of legal reasoning all at the same time. It remains every bit as much of a classic in law for what it SAYS as does any groundbreaking work in philosophy for its academic field. It has stood the test of time and is still the best read of the legal issues even today. He had to have been greatly pleased with the argument he had assembled, both because they provided him with a sense of cogency !
 that his
 Socratic urges desired, and a sense of expediency that politics necessitated. When the best argument solves the political problem, you have quite a zenith in my book.

By the way, I would not characterize the attacks against Marshall's decision as an exercise in  "progressivism." I would rather characterize it as an unfortunate byproduct of those 60s-generation scholars who came to power in academia and unleashed some terrible notions upon legal culture: that epistemology is really nothing more than culture, power and psychology mixed together; that decisions which accurately read legal sentences are really just as good as those that ignore the sentences; and that all legal issues are equally uncertain; etc.

When legal culture moved from analysis into sophistry, it degenerated, plain and simple. 

Carrese Paul O Prof USAFA/DFPS <Paul.Carrese at USAFA.af.mil> wrote:

A brief connection to Marshall in Marbury: I largely agree with Sean Wilson’s recent posts defending what now is criticized as the legalist reading of Marbury; what is amazing, and a lesson for us, is how well Marshall for a unanimous Court sticks to careful legal analysis and exegesis -- from Blackstone to the Constitution to the 89 Judiciary Act – and expounds the Constitution’s role in separating legal principle from the treacherous waters of politics, and even of dispute about basic constitutional principles.  He finds by careful analysis the fundamental points which were accepted for many decades as largely beyond dispute (even Judge Gibson eventually backs down from his criticism of judicial review – and did Gibson ever criticize the Article III and Judiciary Act analysis?)  Still, Marshall does not reach too far to claim as certain that which can’t be held so.  Thus the opinion also clarifies real limits on judicial power: the political questions doctrine, and a remin!
 der that
 the contours of federal judicial power are in part a creature of Congressional and executive power, i.e., the exceptions clause means what it says.  The later glosses on Marshall and Marbury by Holmes, Wilson, Parrington, etc which bring into dispute Marshall’s reasoning all are informed by the Progressive, Hegelian view that all law evolves, the Constitution must evolve, and therefore Marshall and the Court are party hacks finding the results that make sense for their time but not for ours – and so we search for flaws in Marshall’s reasoning to prove that he was a “living constitutionalist” importing his values into the Constitution just like we all do, although he wasn’t smart enough to know he was doing this.  I don’t think a careful reading of the case, in light of the maelstrom of politics at the time (thus the need for the extensive constitutional and statutory reasoning before reaching the jurisdiction question), supports this reading.  Moreover, there is plenty of e!
 vidence
 today that this Progressive view of the judiciary and law has so poisoned politics and the judiciary that even “legal conservatives” are insisting on litmus tests for nominees or proof of “judicial philosophy” that seem indistinguishable from tests for “ideology.”  To the extent that Sean’s posts have argued that Marshall for the Court in Marbury is not writing an ideological opinion, I agree that this is a valuable lesson to rediscover.  Whether we can evolve beyond Holmes and Wilson, and the quandary they have left us in, is the bigger issue.

Paul Carrese

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Tuesday, October 18, 2005 10:56 AM
To: Calvin Johnson; conlawprof at lists.ucla.edu
Subject: Re: FW: The Anti-Fedralists

Calvin:

Are you sure you have Washington pegged correctly? He DID want new, vigorous central governing institutions. He thought the current institutions on the Articles were inadequate. He wrote James Madison in 1785:

“we are either a united people or we are not. If the former, let us in all matters of general concern act as a nation, which have national objects to promote and a national character to support. If we are not, let us no longer act afarse by pretending to it.” 

Although he was pretty much out of the loop until Jay recruited him to the convention (as I understand it) -- and Jay's letter does indicate reform of the Articles only -- I find it hard to believe that Washington was not every bit ((personally) as committed to seeking a new central apparatus with strong powers as was Madison and Hamilton.

What evidence do you have that Washington only wanted to reform the Articles? (I agree that Randolph wanted that). But, to the contrary, Washington was the person who gave  the convention's ultimate agenda (a new government) LEGITIMACY. As long as he was presiding, they really could do no wrong as far as what was on the agenda.  Of course, you could not have reformed the Articles anyway because the amendment process required a unanimous vote of all the states, and Rhode Island frequently didn't send delegates, making it impossible to change. Madison knew that changing the Articles was not a realistic option.

Calvin Johnson <CJohnson at law.utexas.edu> wrote:

To: 'Carrese Paul O Prof USAFA/DFPS'
Subject: The Anti-Fedralists

 Madison was a rabid nationalist at time.  His mentors, Washington and Randolph, told him that the revisions in the coming Convention needed  to be made within the Confederation mode. 

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