Major Constitutional Scholar Implicitly Concedes Defeat

Richard Leffler is editor emeritus of the Documentary History of the Ratification of the Constitution. He recently wrote,“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.”

My friend Kevin Gutzman replies:

[Leffler] 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.

Having devoted considerable attention—many months’ attention—to the Virginia volumes of Leffler’s series, I feel confident that he cannot.

Read all of “Originalism vs. Obamacare” by Kevin Gutzman.

vox

Sounds like Rexford Tugwell would be proud of Leffler. After all, Tugwell spent many years working for (think tank) the Center for the Study of Democratic Institutions. This body worked to develop a new constitution to be imposed on our country, which would be clandestinely divided into ten federal regions for “improved” management of the population. I have little doubt that Leffler types are well aware of this new constitution, published in 1974 under the title “The Emerging Constitution.” It is the embodiment of an organic, “living” constitution than can be easily supplanted as the whims of our overlords dictate. It is a major step in codified regional government, designed to make the merger of a world system possible through changing the ideas and beliefs of a declining civilization. My less Christian sentiments would have me given the opportunity to punch Rexford Tugwell in the face with an iron glove.
StandardConny

Wow. Let’s see…

1) Leffler is an expert on the ratifying conventions held between 1787-1790.
2) Leffler wants ObamaCare to be consistent with the original meaning of the Constitution.
3) To support his view, Leffler cites 2 opinions by Marshall that were written more than 30 years after the ratifying conventions.
4) If there were ANYTHING in the ratifying conventions that supported Leffler’s view, Leffler would surely know of it and would surely have cited it since contemporaneous statements are more persuasive as to original meaning than those made 30+ years later.
5) Leffler does NOT cite anything from the ratifying conventions to support the constitutionality of ObamaCare.
6) Therefore, NOTHING in the ratifying conventions supports Leffler’s view.

This is typical of the intellectual dishonesty I have seen repeatedly in my 30 years as a lawyer. Almost without exception, legal issues are analyzed by first deciding what you WANT the law to be and then ignoring all evidence to the contrary and finding some justification, no matter how flawed, for the result you seek.
LegalCeaser

Very, very well said. Absolutely true!!!
Luke Sunderland

Hmm… It was just over 36 years ago that the Supreme Court overturned the fourteen year long moratorium on the death penalty. Once we get John Roberts’ opinion on this matter, the matter will be settled for all time, right?
J Cortez

Very interesting. And sadly, not surprising.
Anonymous

Very telling indeed.