Madison v. Marshall: Constitutional theory and the original intent debate

Since 1787 Americans have debated whether the legal authority of the Constitution rests solely upon the consent of the people, or whether it also incorporate rules of justice, fairness and logic. Those who argue the former position, currently known as originalists, contend that constitutional meaning should adhere to an original understanding until the document is formally amended. Non-originalists respond that the founding generation never believed constitutional meaning would remain frozen in time and that the founders anticipated that constitutional meaning would evolve according to the dictates of justice and logic. Despite their disagreements, originalists and non-originalists both argue that their constitutional theory should prevail because it is in accordance with the founding generation's original understanding of the Constitution. This dissertation challenges the assumption that such an original consensus ever existed by examining the founding generation's two most respected constitutional authorities: James Madison and John Marshall. Legal scholars and jurists generally assume that Madison and Marshall shared a fully compatible constitutional jurisprudence. However, as I demonstrate, Madison and Marshall disagreed over the two questions that lie at the heart of today's constitutional debate: what is the basis of the Constitution's legal authority, and should its meaning remain fixed or evolve with the passage of time? Before examining the differences between Madison and Marshall, I first demonstrate that Madison's originalist constitutional arguments from the 1790s onwards, which have been largely dismissed as politically driven, are in fact consistent with his previous arguments. I then compare Madison and Marshall's conflicting constitutional theories and explore the implications for today's debate original intent debate.