Ely, James W.

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Comments on Clinton: Reconsidering the Role of Natural Law in John Marshall\u27s Jurisprudence, 33 J. Marshall L. Rev. 1141 (2000)

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UIC Law Review Volume 33 Issue 4 Article 18 Summer 2000 Comments on Clinton: Reconsidering the Role of Natural Law in John Marshall's Jurisprudence, 33 J. Marshall L. Rev. 1141 (2000) James W. Ely Follow this and additional works at: https://repository.law.uic.edu/lawreview  Part of the Constitutional Law Commons, Judges Commons, Jurisprudence Commons, Legal History Commons, Legal Profession Commons, and the Legal Writing and Research Commons Recommended Citation James W. Ely, Comments on Clinton: Reconsidering the Role of Natural Law in John Marshall's Jurisprudence, 33 J. Marshall L. Rev. 1141 (2000) https://repository.law.uic.edu/lawreview/vol33/iss4/18 This Symposium is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact repository@jmls.edu. COMMENTS ON CLINTON:RECONSIDERING THE ROLE OF NATURALLAW IN JOHN MARSHALL'SJURISPRUDENCEJAMES W. ELY, JR.*In his paper, Robert Clinton continues his exploration of theplace of natural law in the constitutional order of the earlyrepublic.1 He offers a challenging account of the Marshall Court'sprinciples of constitutional interpretation. I concur with his viewthat an understanding of Marshall's constitutional decision-making benefits from careful historical inquiry. I also share hisunhappiness with the effort of Progressive-era scholars to recastconstitutional history in terms of class conflict.Still, there is room to question whether Clinton has provideda convincing assessment of Marshall's jurisprudence. I fear thathe is inviting us on a journey to a fanciful past. Specifically, Iwish to suggest four caveats to Clinton's analysis:1) He posits that Marshall was heir to a natural law traditionwhich found expression in English common law and WilliamBlackstone. This tradition, we are told, represented a consensus.But the natural law tradition was more complex and disjointedthan Clinton makes it appear.! Not only did Sir Edward Coke andBlackstone write more than a century apart and under verydifferent political circumstances, but Blackstone was more asynthesizer of different views than a champion of natural law.Further, at least two prominent American constitutionalists,Thomas Jefferson3 and James Wilson,4 emphatically rejectedUnderwood Professor of Law and History, Vanderbilt University Schoolof Law.1. See generally ROBERT LOWRY CLINTON, MARBURY V. MADISON ANDJUDICIAL REVIEW (1989); ROBERT LOWRY CLINTON, GOD AND MAN IN THELAW: THE FOUNDATIONS OF ANGLO-AMERICAN CONSTITUTIONALISM (1997).2. See generally KNUD HAAKONSSEN, NATURAL LAW AND MORALPHILOSOPHY FROM GROTIuS TO THE SCOTTISH ENLIGHTENMENT (1996)(surveying the array of different natural law theories); see also THECAMBRIDGE HISTORY OF POLITICAL THOUGHT 561-652 (J.H. Burns ed. 1991).3. DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMASJEFFERSON, 10-11, 47-51 (1994); Julian S. Waterman, Jefferson andBlackstone's Commentaries, 27 ILL. L. REV. 629, 629-659 (1933).4. 1 JAMES WILSON, THE WORKS OF JAMES WILSON 15-20 (James DeWittAndrews ed. 1896).1141The John Marshall Law ReviewBlackstone's views as unsuitable for the foundation of a republicangovernment. In short, the notion that there was a single naturallaw tradition that everyone accepted is more asserted thandemonstrated. It would be remarkable indeed if there was everany universally accepted understanding of either natural law or ofthe basis for constitutional interpretation. English courts,moreover, do not exercise judicial review over legislation orinterpret a written constitution. Therefore, Blackstone'sconception of the judicial function was an imperfect model fornewly independent America.It follows that the leading decisions of the Marshall Courtcannot be understood solely as a quest to discover some pre-existing norms derived from common law. Marshall was alwaysalert to the political realities of his day and to the instrumentaldimension of judicial decision making. There is an air of unrealityabout Clinton's suggestion that Marshall was deciding cases in asort of political vacuum.2) As argued by Clinton, the appropriate use of natural law bycourts rests on a fine distinction. The Marshall Court, he insists,regarded natural law principles as embodied in the writtenConstitution. Thus, it was thought suitable that the Constitutionshould be interpreted with reference to natural law. Clinton isquick to assert that the Marshall Court never relied solely onnatural law in deciding cases, but rather limited itself to applyingnatural law principles as they were incorporated in the text of theConstitution. This strikes me as a thin distinction that does notamount to much of a real difference. I would suggest thatMarshall and his colleagues simply did not draw a sharp linebetween the constitutional text and non-textual natural lawprecepts. If the Constitution was fully consonant with naturallaw, why should we be surprised that some Marshall Courtdecisions relied on natural law concepts, regardless of theirexpress incorporation into the text?5Not only was the Marshall Court prepared to invoke extra-textual norms drawn from natural law, but state courts in theantebellum era began to move in a parallel direction. Theydeveloped the notion that due process placed substantiverestraints on the exercise of legislative power. The emergingdoctrine of substantive due process to safeguard liberty andproperty interests was similar to Marshall's recognition ofunenumerated rights.65. See generally Suzanna Sherry, The Founders' Unwritten Constitution,54 U. CHI. L. REV. 1127, 1127-1177 (1987).6. See generally James W. Ely, Jr., The Oxymoron Reconsidered: Myth andReality in the Origins of Substantive Due Process, 16 CONST. COMMENTARIES315, 327-342 (1999); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L.REv. 171, 171-222 (1992).1142 [33:1141Comments on Clinton3) I confess that I am mystified as to how a centuries-oldconsensus understanding about the use of natural law, supposedlyaccepted by judges and the public alike, could be so easily hijackedin the post-Civil War era to serve the goal of economic liberty.Clinton attributes this development to a cabal of laissez-fairestattorneys, judges, and politicians. But his explanation leavesmuch to be desired. Ironically, Clinton on this point appears tofollow in the path of the very Progressive historians he criticizes.One doubts that there could have been a meaningful consensusabout the proper role of natural law if its usage could be sosuddenly and inappropriately enlarged. Is a better explanationthat judges in the late nineteenth century built upon the MarshallCourt's use of natural law, and infused natural law principles intothe Due Process Clause? Indeed, arguably there was considerablecontinuity between the jurisprudence of the Marshall Court andthe constitutional doctrines promulgated by courts in the latenineteenth century. Jennifer Nedelsky has cogently observed:But the notion that property and contract were essential ingredientsof the liberty the Constitution was to protect, was common toMadison, Marshall, and the twentieth-century advocates of laissez-faire. And the idea that property and contract could define thelegitimate scope of governmental power was a basic component ofconstitutionalism from 1787 to 1937. 7In this connection, I am dubious that Social Darwinism had the impact thatClinton assigns. It has become an article of faith for some scholars that theSupreme Court in the late nineteenth century was influenced by the tenets ofSocial Darwinism.8 Yet there is little evidence to sustain this thesis.9 Indeed,as Herbert Hovenkamp concluded: "The degree to which Darwinism andSocial Darwinism failed to permeate the thinking of the Supreme Court inany way is most amazing."' In any event, Social Darwinism has been out offavor for decades and hardly explains the continued rejection of what Clintondescribes as a one-time accepted convention of constitutional interpretation.4) Lastly, I would question the rather passive image of theMarshall Court fashioned by Clinton in this paper and elsewhere.In fact, Marshall was quite an activist in effectuating the property-conscious values of the framers, which were enshrined in theConstitution.1' These rulings were bolstered by an instrumental7. JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICANCONSTITUTIONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY 228(1990).8. See, e.g., ROBERT GREEN MCCLOsKEY, AMERICAN CONSERVATISM INTHE AGE OF ENTERPRISE, 82 (1951).9. JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER,1888-1910 75-77 (1995).10. HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937 99-100(1991).11. JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: ACONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 42-58, 63-68 (2nd ed. 1998).20001The John Marshall Law Reviewunderstanding of the desirability of protecting property andnational markets as vehicles for economic growth. Charles F.Hobson, for example, has pointed out that Marshall's dedication toproperty rights was based on his conviction "that strongconstitutional protection for property and investment capitalwould promote national prosperity."12 One must not lose sight ofthe practical dimensions of Marshall's jurisprudence.These reservations aside, Clinton should be applauded fortackling a difficult and important topic. He asks a number ofcompelling questions about the work of the Marshall Court, andhis thought-provoking treatment will inform and challengescholars.See also Stuart Bruchey, The Impact of Concern for the Security of PropertyRights on the Legal System of the Early American Republic, 1980 WIS. L. REV.1135, 1135-1158 (1980).12. CHARLES F. HOBSON, THE GREAT CHIEF JUSTICE: JOHN MARSHALL ANDTHE RULE OF LAW 75 (1996).1144 [33:1141

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Comments on Clinton: Reconsidering the Role of Natural Law in John Marshall\u27s Jurisprudence, 33 J. Marshall L. Rev. 1141 (2000)

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