SSP: in the soon-to-appear Virginia Law Review symposium on Marbury, I argue that Marshall's interpretive views in Gibbons are much like Ronald Dworkin's, not Scalia's.
Marshall makes an argument about the meaning of "strict construction" almost identical to the one Dworkin makes two centuries later in "Constitutional Cases." 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." Scalia, by contrast, ties meaning to contemporary practices in a way that Marshall did not do. His original essay in A Matter of Interpretation is ambiguous about that point, but it emerges clearly in his reply to Dworkin and in his jurisprudence (an excellent treatment and critique of this feature of Scalia's jurisprudence is Mark Greenberg and Harry Litman, The Meaning of Original Meaning, 86 Geo. L. J. 569 (1998)). --Chris Philip Frickey wrote: > Take a look at John Yoo's student comment in the Yale Law Journal a > decade ago, and the exchange between John Manning and Bill Eskridge > within the last two years (article by Manning, critique by Eskridge, > response by Manning). > > Phil Frickey > > Robert Justin Lipkin wrote: > >> In rereading Gibbons v. Ogden, I was struck by the similarity >> of Chief Justice Marshall's views on interpretation and Justice >> Scalia's views on the same as expressed in Scalia's book A Matter of >> Interpretation. Rather than defend this comparison, let me ask >> whether there's any literature comparing the interpretive strategies >> of these two Justices? >> >> Bobby Lipkin >> Widener University School of Law >> Delaware > -- Christopher L. Eisgruber Director, Program in Law and Public Affairs Laurance S. Rockefeller Professor of Public Affairs Woodrow Wilson School Princeton University Princeton NJ 08544 [EMAIL PROTECTED] tel: 609 258-6949 fax: 609 258-0922
