The State of the Canon in Constitutional Law: Lessons from the Jurisprudence of John Marshall

Constitutional law has been an active battlefield as competing groups within the academy seek to deconstruct, reconstruct, and/or relegitimize the teaching and practice of law in the United States. Much of the rhetoric of the debate is couched in the language of rights. There is a danger that diminished attention to powers in the rhetoric and teaching of constitutional law may compromise sober and moderate constitutional reasoning. By reinvigorating reflection on powers-related issues, the legal profession can do its part to promote sobriety, and hence an added dose of prudence, in constitutional reflection and discourse by a democratic citizenry whose natural impulse is to make self-serving demands in the name of individual freedom and autonomy. In the constitutional reasoning and jurisprudence of John Marshall can be found considerable support for striking a balance between attention to powers and rights.