[mfigaro]

I just finished the Marshall II lecture. Given that the damaging precedents by Marshall were set so early on, and given the dependence of the legal system upon precedents, is there any plausible strategy for unwinding the errors? It seems that the Marshall opinions and the Federalist papers have become a constitution unto themselves which is perhaps more arbitrary than English common law. Is even English common law so dependent on such a small number primary sources? It seems amazing that the Constitution has achieved so much of its original intent given the grievous errors in interpreting it which occurred so early on. Or has it?

[Brion McClanahan]

There are plausibly three ways to undo Marshall:

1. Dr. Gutzman’s Federalism Amendment idea, which has a long uphill battle, even among people who believe themselves to be “originalists.”

2. Nullification, which is gaining steam among a myriad of issues.

3. Secession or decentralization, which also has some momentum at the moment, at least in non-political avenues (homeschooling, organic farming, etc.).

I don’t think the Constitution has retained any of its original intent, at least not how it was sold in 1787 and 1788. That Constitution died fairly quickly. It has retained everything the opponents of the document said it would and very little of what proponents suggested it would be.

[Author]

Posts