The Supreme Court’s ruling that the medical-care law signed by President Obama is partly constitutional, partly not has spawned abundant commentary on the motives and role of Chief Justice John Roberts. I find this heartening: it shows that people know the emperor, or chief justice, has no clothes. One element of the buildup to the Court’s decision, however, merits special attention.
On the H-NET e-mail list for legal scholars, Richard Leffler posted a stunning May 25 e-mail. John Marshall’s Supreme Court opinions deserve great attention, Leffler held, and yet the attorneys for and against Obamacare had said virtually nothing about them in the NFIB v. Sebelius‘s oral arguments. Leffler said he had written a Huffington Post piece showing that Obamacare was constitutional, and yet no one had noticed. He hoped that other scholars would offer their opinions.
Leffler is editor emeritus of The Documentary History of the Ratification of the Constitution, one of the great historical series. He and his colleagues have nearly completed the project of producing twenty-odd volumes of correspondence, speeches, pamphlets, broadsides, newspaper essays, and other material from the ratification dispute—the three-year process from 1787-90 when Americans debated and decided whether to live under the proposed U.S. Constitution.
In the editorial of May 7, 2012, Leffler noted that Marshall stood with James Madison to explain the Constitution in Virginia. He then averred that “Someone today searching for the original understanding of the Constitution can hardly do better than to consult the opinions—usually unanimous opinions—written by Marshall.” He then drew readers’ attention to two of the most famous judicial opinions in American history: Marshall’s majority opinions in McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824).
An attentive reader will realize instantly that Leffler’s focus on these opinions, published 31 and 36 years after Marshall served as a second-line Federalist in the Virginia Ratification Convention, raises a question: is that all there is? After all, since Leffler edited the bulk of the primary materials of the ratification contest, and since Madison, Thomas Jefferson, and other originalists have held that the meaning of the Constitution was to be found in the ratification conventions, one would expect him to highlight arguments made in 1787-90 in support of his position—if he could.
