An explanation of some sort is required, for even those of us who deplore activism admire Marshall, and it is clear that he was, in some respects, an activist judge. But his activism consisted mainly in distorting statutes in order to create occasions for constitutional rulings that preserved the structure of the United States. Although he may have deliberately misread the statutes, he did not misread the Constitution. His constitutional rulings, often argued brilliantly, are faithful to the document.
If you read all of what Bork wrote, then, you can see that he held that Marshall was not a constitutional judicial activist. Needless to say, Marshall and his contemporary defenders would deny that he deliberately misread any statutes. I don’t think Bork is correct in saying this, and I can’t see how he could present any evidence—other than an outright confession by Marshall, which does not exist—that Marshall read statutes wrong on purpose, as opposed to making an error in their interpretation. But even if Marshall did deliberately misread statutes, his behavior would be indefensible from any point of view and could provide no support for the kind of constitutional judicial activism that Root supports.
Root also points out that Bork was critical of Marshall’s opinion in Fletcher v. Peck. Here again he does not tell the whole story. In The Tempting of America (interested readers can look this up on pages 25-26), according to Root, Bork speaks of Marshall’s “remarkable performance,” in which he “had to go well out of his way to float the idea that a court might strike down a statute even where the constitution is silent.” It is true that in this opinion Marshall mused on the question whether a court might strike down a law on general principles of justice instead of on the basis of the constitutional text. But the reason Bork said that Marshall had gone “well out of his way” in offering such musings is that in the end (as we have discussed above) Marshall did not rest his opinion on any such unwritten principles but instead on the written text of the Contracts Clause. Marshall may have mused on the possibility of a non-textual judicial review, but he did not do it in Fletcher or any other case.
Originally appeared in the National Review Online