Chris Eisgruber writes:
And Marshall's claim that the framers "must be understood to have employed words in their natural sense, and to have intended what they have said" is very close (if not identical) to some of Dworkin's key claims in '"Freedom's Law."
Yet Marshall's claim (referred to above) is close to what Scalia says in A Matter of Interpetation.
My reply to Chris Eisgruber's interesting and plausible post would take more time than I presently have. The short version is that both Marshall and Scalia reject the term "strict construction" if that is interpreted crudely to say that the meaning of the text lies in the text, the text, and nothing but the text. Scalia, if I recall correctly, ultimately uses the term "reasonable" to qualify interpretation not "strict," and then, again if I recall correctly, interprets "reasonable" in the way Chris suggests.
My point is not that Marshall and Scalia's methodologies are one and the same. Rather, the point is that Marshall's "Founding paradigm" includes both Dworkin's and Scalia's. This Founding Paradigm of American constitutional interpretation rejects any vulgar textualism in favor of an appeal to the natural meaning of the words and the purposes "in connexion with the purposes for which they were conferred." This Founding paradigm has two branches--and this is where all the methodological controversy lies--between a broad interpretation of the Constitution and a narrow one, though neither Marshall, Scalia, nor Dworkin would put it in these terms. The reason none of these writers would put it in these terms is that all agree that both "broad" and "narrow" interpretations must be rejected. Each would insist that his position is neither broad nor narrow, but just right. The broad branch of the Founding paradigm is found in Marshall's opinion in Gibbons also. Chris is on the money that Dworkin can be seen as grabbing hold of this branch of the Founding paradigm. However, since both Marshall and Scalia reject the idea that interpretation should be narrow. Scalia can be seen as grabbing hold of this other branch of the paradigm.
However, narrowly (some of us may think) Scalia interprets the idea of reasonable interpretation, he seems to deliberately reject the idea of strict construction. Indeed, there's language in A Matter of Interpretation strickingly similar to Marshall's language in Gibbons. (One could, of course, argue that "narrow" and "broad" are simply taboo terms that no self-respecting jurist or theorist can afford to use in characterizing his or her own methodology, and while we might say that their views are narrow or broad, they cannot.) If this is right, and if Chris is right (and I think he is), there exists both a Dworkinian branch of the Founding paradigm and a Scalian branch also.
Much more needs to be said to accommodate the idea that there's both a Dworkinian branch and a Scalian branch of the Marshallian paradigm, but I think it can be established, though not in this venue.
Incidentally, if the article Chris refers to in his post is the one he kindly shared with me, those interested in these theoretical or jurisprudential issues should be sure to read it.
Bobby Lipkin
Widener University School of Law
Delaware
