Should the justices of the Supreme Court rely on “original intent” as the foundation for constitutional interpretation? Or should they be free to interpret the Constitution in light of hermeneutical approaches created by current philosophies of law? This essay examines the Marshall Court to determine whether its opinions take their bearings from the American Founding or instead rely on a philosophy of jurisprudence that can be separated from the Founding. The purposes of this essay are fourfold: 1) to provide a comprehensive account of the use of the Framers by the Marshall Court, 2) address the normative question of the attachment of the Marshall Court to the concept of Madisonian Originalism, 3) return from the empirical and normative journey to take another look at the Marbury decision and 4) provide a tentative assessment of the challenge of the respectable minority of scholars concerning the Marshallian myth.
Lloyd, Gordon, "Marshall v Madison: The Supreme Court and Original Intent, 1803-1835" (2003). Pepperdine University, School of Public Policy Working Papers. Paper 16.