The Origins of Originalism

As usual this time of year, I'm trying to re-prep my brain for teaching American Political Thought in the late summer session. Last month, wandering through an unfamiliar used book store in VA, I stumbled on Jack Rakove's Original Meanings (1996) selling for a buck. One friggin dollar! I think I can safely say that that is the best value shopping for a book I've ever pulled off. Not just because it was cheap, but because Rakove (a Stanford historian) does a great job sorting out the politics of the founding era and connecting them to the debate over constitutional "originalism."

I always enjoy revisiting that era and its personalities, and Rakove's got some nice twists on the tale that I either didn't know or had forgotten. Not surprisingly, he places a lot of emphasis on Madison, who he depicts--rightly--as a strong nationalist in 1787. That's old hat. But what I didn't know is how hard Madison fought against the Great Compromise, believing as he did that equal state representation in the Senate was a stupid and vicious idea. Frances knows this turf well, so I've heard the outlines before, but somehow I missed the intensity of this issue for JM, who brings this point up ad nauseam until other delegates must have been sick of hearing it. Rakove himself is bitterly critical of the Compromise, arguing that historians err in blasting the 3/5 Comp. while hailing Roger Sherman and the Connecticut delegation for solving representation in the Senate. As Rakove sees it, the malapportioned Senate did far more to protect and promote slavery than the House, to which the 3/5 clause applied. Sherman does not come off well in this account: a fussy aristocrat who elevated vapid bipartisanship over principle and pandered to Southern racists, foreshadowing generations of Copperheads and Liebermanites.

Rakove's most interesting argument, however, is probably his effort to trace the origins of "originalism" in constitutional interpretation. He spends a lot of time on issues of interpretation, making the obvious but often overlooked point that there was never a settled meaning for the document, which was subject to heated hermeneutic debates form the start. Not that there are no boundaries beyond which an interpretation becomes untenable, but, as Randolph noted in the Convention, the document's language should be kept to "essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events" (342). A constitution and a statute differ, and the precision required in the latter would be out of place in the former. Interestingly, this point tended to divide federalists and antifederalists in the ratification debates. Although both sides saw themselves as Newtonians, the antifeds depicted the natural laws of politics as fixed dogma of established and inflexible rules, whereas federalists offered a practical and experimental view that made room for future experience.

In other words, the most dogmatic of today's "originalists" actually come closer to the antifed position on law than they do to that of the constitution's original supporters. Two examples: federalism and separation of powers. Rakove shows that Madison had basically pragmatic understandings of these ideas, recognizing that no separation could be complete since all powers overlapped to some extent, and believing that political contests between branches or levels of government would allow for flexible adjustments over time.

Rakove also documents the first appearance of "originalist" arguments in the early Congress as disputes arose over presidential "removal" power, the national bank, and the Jay Treaty. Although Rakove credits Madison himself with having "invented" originalism, he takes pains to show just how opportunistic this debate is on all sides. By this point, Madison and Hamilton had become opponents, Madison having come the conclusion that he had been wrong in 1787 to fret about limiting legislative power when the real threat to republicanism came from the executive. Hamiltonians and Madisonians sparred over the meaning of the constitution, appealing to framers' intent, ratifiers' understanding, English common law, or an open-ended pragmatism, all depending on whose ox was getting gored, and frequently switching interpretive theories on a dime when the need arose. Fittingly, the first time "Publius" was ever invoked to prove a point, during the removal debate (did the Senate have to approve cabinet firings as well as hirings?), BOTH Madison and Hamilton disavowed their argument in the Federalist, having become convinced that they had been wrong.

One key implication of Rakove's analysis is that the originalist dream of a pristinely "neutral" legal standard that lives above politics is a futile one. But he doesn't turn from here toward relativism or "legal realism." Instead, he shows how, despite their disagreements, some arguments (often Hamilton's in debates over the bank or treaty power) were more firmly grounded than others. The real lesson here is one of hermeneutic moderation and humility. I sometimes wonder if we'll ever see such virtues in the Supreme Court.