Rejecting Originalism
In the decades following Marshall’s appointment, legal thought in the United States saw a resurgence of originalism - the interpretive approach insisting that constitutional meaning is fixed at the time of its ratification. Figures like Justice Antonin Scalia championed originalism, positing that judges should discern the Constitution’s “original public meaning” rather than adapt it to current realities. Marshall took a diametrically opposed view.
He was candid in his belief that many of the Constitution’s framers had vested interests in preserving privileges for a small subset of the population. Furthermore, as a Black American, he was acutely aware that the original Constitution not only tolerated slavery but enshrined it through the infamous Three-Fifths Compromise. Consequently, Marshall argued that to treat the Founders’ 18th-century perspectives as sacrosanct was both historically naive and morally problematic. While he acknowledged the significance of historical context, he insisted that the Constitution must be interpreted in a way that advances its overarching principles of liberty and equality, even if doing so defies what certain Framers may have believed centuries ago.
Embracing a Moral and Evolving Constitution
Marshall’s stance aligned closely with the “living Constitution” approach. He saw the document as part of an ongoing project, one in which the American people continuously refine and expand their understanding of constitutional principles. This expansion was, in his view, evident in the post–Civil War amendments, the gradual extension of voting rights to African Americans and women, and the landmark civil rights legislation of the 1960s. Each of these developments underscored that the Constitution’s meaning was neither static nor easily encapsulated by historical intent.
In practice, this perspective led Marshall to read broad phrases like “equal protection” or “due process” as capacious enough to address modern forms of injustice. Far from betraying the Constitution, he believed such readings upheld its most important moral commitments. This tension between a living Constitution and a strict, historically anchored interpretation often placed Marshall in opposition to conservative colleagues. Yet, even as he found himself increasingly in dissent in the latter years of his tenure, Marshall’s moral conviction remained a guiding force in his jurisprudence.
