At Legal History Blog, Albert Brophy and Ted White have been discussing Professor White’s classic book The Marshall Court and Cultural Change, 1815-1836 – see here and here. (Thanks to Tomiko Brown-Nagin at Legal History Blog for posting the exchange).
In the comments “Shag from Brookline” asks this interesting question:
Does the Taney Court's Charles River Bridge case decision square with originalism? (I understand that some scholars consider that CJ Taney's opinion in Dred Scott was an early Court example of originalism.)
The core of Professor White’s answer, which I find a bit unsatisfactory, is:
I can't think of any scholars who have taken the position (in print) that Taney's opinion in the Charles River Bridge case was an "early example of or[i]ginalism." … [T]he Charles River Bridge case, by the time it was eventually decided by the Court, was about whether the Contracts Clause of the Constitution implicitly contained the common law principle that a legislature could not take property from A and give it to B without compensation. That was not an "originalist" reading of the Contracts Clause; it was a reading that had been supplied by some early nineteenth-century Contracts Clause decisions of the Court and some commentators, notably Joseph Story, and it rested on something like natural law, "first principles of free republican governments." Taney's opinion rejected that reading, not because of the "original understanding" of the Contracts Clause but on two other grounds: first, contracts should be strictly construed (offered as a common law principle of interpretation), and, second, "improvements" in transportation would be impeded if the franchisees of legislatures could prevent any subsequent competition in a transportation sector, even if such competition was welcomed by subsequent legislatures allegedly representing the public as a whole.
As background, the 1837 decision in Charles River Bridge v. Warren Bridge involved an 1785 Massachusetts act granting the Charles River Bridge company the right to erect a bridge and charge tolls; the question was whether the state violated the bridge company’s rights by later allowing a second company to build a competing bridge which ultimately became open to the public without charge.
I would say strongly, yes, Taney’s opinion squares with originalism in two key senses. First, Taney focused on the text of the Contracts Clause, rejecting (as Professor White says) more free-wheeling natural law approaches that lacked foundation in the clause’s text and original meaning. Modern originalism, especially of the original public meaning variety, emphasizes the primacy of the text. Second, Taney concluded (quite rightly, I would say) that the Clause was violated only if the state had previously promised the bridge company an exclusive right. To answer that question, Taney looked at the text and original meaning of the agreement between the state and the bridge company. Among other things, he purported to find (pp. 544-45) a longstanding background principle of interpretation that public contracts were strictly construed against the private party – an example of what Mike Rappaport and John McGinnis might call “original methods originalism.” And Taney relied (pp. 551-52) on a (supposed) longstanding practice of governments of not regarding grants of infrastructure rights to be exclusive unless the grant said so expressly (which the bridge company’s grant did not). Contrary to Professor White’s implication, the latter point wasn’t just offered as a policy justification, but rather as an indication of the ordinary meaning of the contract.
I’m not saying Taney necessarily was correct – David Currie, a formidable authority, preferred Justice Story’s dissent (The Constitution in the Supreme Court, p. 210). But Taney’s approach is surely consistent with originalism (both as to the Constitution and the contract), whether or not he was right on the details.
I can’t help adding, with regard to Dred Scott, that pretty much every originalist I know thinks that Taney’s opinion in that case was a spectacular misapplication of originalism and that the true originalist was dissenting Justice Benjamin Curtis, who famously wrote (60 U.S. at p. 620) in direct rebuke of Taney:
[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.
Posted at 7:00 AM