Clinton - Original Understanding, Legal Realism

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72 IALR 1177 (Cite as: 72 Iowa L. Rev. 1177)
FOR EDUCATIONAL USE ONLY
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Iowa Law Review July, 1987 Symposium: In Celebration of the Bicentennial of the Constitution *1177 ORIGINAL UNDERSTANDING, LEGAL REALISM, AND THE INTERPRETATION OF 'THIS CONSTITUTION' Robert N. Clinton [FNa] Copyright 1987 by Robert N. Clinton
Table of Contents I. II. Introduction ....................................................... 1179 Originalism and the Interpretive Understanding of the Framers ...... 1186 A. Introduction .................................................... 1186 B. Originalism and the Adoption of the Constitution ................ 1187 C. Originalism and Early Nonjudicial Interpretation of the Constitution ..................................................... 1197 1. Early Debates in Congress ................................... 1197 2. The Jay Treaty Debate in the House of Representatives ....... 1198 3. Subsequent Nonjudicial Comments on Originalism .............. 1208 D. Originalism and Early Judicial Interpretation of the Constitution ..................................................... 1213 III. Historical Methodology and Original Understanding .................. 1220 A. Ahistorical Tendencies in the Debate over Originalist Interpretation ................................................... 1220 B. Methodological Concerns in Investigating Originalist History .... 1227 C. Speculation on the Roots of Modern Originalism in Late Twentieth-Century Western Thought ................................ 1241 IV. Political Polarization and Originalism: The Creation of Misleading History .......................................................... 1243 A. The National Union Under the Constitutio( ....................... 1244 B. The Original Understanding of the Ninth Amendment ............... 1252
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C. The Fourteenth Amendment Incorporation Doctrine ................. 1256 V. A Nonoriginalist Defense of Originalist Constitutional Interpretation ................................................... 1259 A. Originalism and Constitutional Stability ........................ 1259 B. Originalism and Constitutional Growth: A Methodological Synthesis of Originalist and Nonoriginalist Thought .............. 1264 1. Introduction: Extraconstitutional and Contraconstitutional Interpretation ................................................... 1264 2. A Dynamic Interpretive Approach to Original Understanding ... 1266 3. Precedent and Original Understanding ........................ 1276 VI. Conclusion ......................................................... 1278
*1179 What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense! And that the language of our Constitution is already undergoing interpretations unknown to its founders will, I believe, appear to all unbiased inquirers into the history of its origin and adoption. --James Madison [FN1] I. INTRODUCTION As the United States celebrates the bicentennial of the drafting and ratification of its Constitution--a celebration of the constitutional stability brought about by this fundamental document 'intended to endure for ages' [FN2] --lawyers, jurists, and academics find themselves embroiled in a surprisingly passionate debate over the significance of the history surrounding these momentous events to the judicial interpretation of the document that emerged. Indeed, the debate over the interpretive significance of such constitutional history rapidly is becoming one of the more hotly debated contemporary political, as well as legal, topics. [FN3] *1180 As Madison's comments reflect, the issue of the interpretive significance of original understanding is not a new topic. Rather, the debate over originalism is almost as old as our current cosntitutional Union. Over the course of 200 years, however, a number of important elements have changed, including the disputants, their general level of access to primary historical materials, and the jurisprudential manner in which they perceive law and the Constitution. At the core of this modern debate is the question of the interpretive significance of originalism. While originalism might mean many different things, in this Essay it will denominate the view that the Constitution or any amendment thereto should be interpreted as its spirit and language were understood when the relevant provision was drafted rather than in light of new and different meanings that later generations have created and supplied. [FN4] This definition focuses on the importance of historiography to *1181 the interpretive process. *1182 The contemporary debate over originalism has created a deceptive legal and political polarization. On the one hand, many current advocates of legislative ascendancy, judicial conservatism, and self-restraint in constitutional adjudication, such as former Chief Justice Burger, Judge Bork, and Attorney General Meese, [FN5] have donned the mantle of originalism. They have argued, with varying degrees of rigor and sophistication, that the Constitution legitimately can be interpreted to mean only what the framers originally intended it to mean in the period 1787-1789 when it was drafted, proposed, and ratified. These proponents of originalism also often advocate *1183 a more limited constitutional role for the federal government and a protected cosntitutional role for the sovereignty of the states. For such originalists, all constitutional issues must be resolved by resort to the language of the Constitution and the resurrected understanding of the framers at the time the Constitution was drafted and ratified. For them, original meaning is the only legitimate meaning that should be imparted to a constitutional document. Furthermore, the only way to
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discover that original meaning is by historical analysis of the surviving records of the events surrounding the adoption of the particular constitutional clauses in question. For originalists, the very idea of historically insupportable nontextual rights, such as a right of choice in fundamental matters of procreation, contraception, and abortion [FN6] or, possibly, a right of interstate travel or migration, [FN7] constitutes a blatant judicial usurpation of legislative authority and an unwarranted federal intrusion on the sovereign prerogatives of the states. On the other hand, most supporters of judicial activism, particularly proponents of an active federal judiciary that rigorously enforces a wide variety of civil liberties against the majoritarian excesses of legislative bodies, have totally rejected the interpretive significance of originalist history. [FN8] These nonoriginalists often are advocates of a larger role for the *1184 national government and greater constitutional restraints on the states. The speeches of Justice Brennan [FN9] or the writings of Paul Brest [FN10] and Thomas Grey [FN11] illustrate his approach. For them, the dead hand of the framers' thoughts in the agrarian, pastoral world of the late eighteenth century simply cannot reach out over 200 years of national political, social, and economic development and control the constitutional governance of a complex, postindustrial late twentieth-century society. The absurdity of originalism answering questions that the framers could not conceivably have envisioned convinces such nonoriginalists that original understanding on many important constitutional issues is not discoverable and that even if it reasonably could be ascertained, it would be wholly irrelevant to constitutional interpretation. [FN12] A clever offshoot of this analysis is the recent attempt by nonoriginalists to demonstrate that originalism was not intended by the framers [FN13]--an effort to hoist the originalists by their own petard. Strangely, this argument seems to violate a position often held by nonoriginalists--that the modern researcher cannot definitively discover the collective original understanding of a dimly lit past that can be re-created only through a telescope the lenses of which have been filtered, colored, and skewed by more modern concerns and problems. [FN14] One reason for this intense division of position is the effort to understand, legitimate, and, for some, limit judicial discretion in a postrealist world. Both the natural rights jurisprudence dominant in the era when the Constitution was drafted and the analytical postivist or formalist analyses of the late nineteenth and early twentieth centuries assumed that the process of judicial determination involved an analytical process that when properly applied could yield but one correct answer. Under each perspective, judicial interpretive discretion was inherently limited by the perceived nature of the role of the judiciary. The pragmatism of the legal realist philosophy [FN15] attacked this vision of the judicial role and left a quite different perception of judicial decisionmaking in its wake. The judge was seen as arbitrating between several quite plausible decisional alternatives and, at least for pragmatic instrumentalists, deliberately choosing the one most conducive to the social good. The judge no longer was perceived as merely a neutral discover and enforcer of the law, but as an active participant in the law-making *1185 process. Legal realism focused on the personal elements of the judicial role. It emphasized judicial discretion. Once the legal realists highlighted the process of the judicial interpretive choice, inquiry and contemporary debate naturally focused on the legitimacy of, and limits on, such choices--the preclude to the current chorus of speeches and articles on the significance of original understanding. In a post-legal realist world, those uncomfortable with the wide-ranging sovereign prerogatives of the judiciary described by the legal realist school of thought have seized upon original understanding as both a legitimating and a limiting principle. The need for, and significance of, such legitimating principles, however, has been contested forcefully by those who actively embrace the realist image of the judicial role. This Essay offers a realist middle ground on this overly polarized political and legal debate. The Essay will suggest that both the originalists and nonoriginalists have made excessive, insupportable claims. The originalists are mistaken in thinking that only original understanding can legitimately resolve constitutional interpretive questions, and the nonoriginalists have ignored the cultural significance of the fact that we have a written Constitution and a quite sizable body of primary historical data from which to assess how and why the framers used the language found in that document. This Essay also will suggest that those who purport to rely on history too often have their history backward, and that the judicial activists, by deeming historical inquiry irrelevant, have allowed the proponents of judicial conservatism to disguise as truth inaccurate depictions of historical facts. In attempting a reconciliation of pragmatic postrealist thought with the significance of original understanding, the core idea advanced is the cultural, political, social, and economic improtance of constitutional stability to national development and progress--a fact clearly recognized by the framers, as reflected in Madison's writing in The Federalist No. 49. [FN16] In short, as Chief Justice Marshall described it, the Constitution was designed to be, and has been, 'a constitution intended to endure for ages to come, and consequently, to be adapted tot he various crises of human affairs' [FN17] precisely because it combines the flexibility to permit social, economic, and political progress with the structured
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backbone necessary for constitutional stability. Thus, Marshall's famous maxim that 'we must never forget that it is a constitution we are expounding' [FN18] is best understood as having a double-edged meaning, that is, facilitating interpretive evolution and growth while retaining political stability by paying appropriate homage to constitutional language and originalist history. *1186 II. ORIGINALISM AND THE INTERPRETIVE UNDERSTANDIGN OF THE FRAMERS A. Introduction Those who argue for originalism as an exclusive interpretive methodology frequently do so in a fashion that uncritically assumes that the framers conceived of textual and historical exegesis as the only legitimate interpretive strategy. One thoughtful nonoriginalist commentator, Professor H. Jefferson Powell, relying on the intellectual history of the late eighteenth century and the interpretive methdologies invoked in various elements of secular and religious life, recently argued that the original understanding of the framers on original intent treated interpretation from text as synonymous with the original understanding of its drafters. [FN19] Thus, he argues that the persons who drafted and ratified our Constitution had no conception of, and would not have subscribed to, a straitjacket of historical inquiry behind the text of the Constitution that modern originalists attempt to advance as a legitimate interpretive methodology. In Professor Powell's terms: [The] consensus [that] eventually emerged on a proper theory of constitutional interpretation . . . centered on 'original intent.' But at that time, that term referred to the '2ntentions' of the sovereign parties to the constitutional compact, as evidenced in the Constitution's language and discerned through structural methods of interpretation; it did not refer to the personal intentions of the framers or of anyone else. [FN20] Cursory review of the available historical material surrounding the drafting, ratification, and implementation of the Constitution reveals that while considerable historical evidence supports Professor Powell's thesis, the evidence is more mixed than he suggests. Indeed, it appears that the framers of the Constitution and those who sought to interpret it within the half-century after it entered into force had no single clear interpretive intention, but did recognize the originalist methodology advanced today as one of a number of legitimate hermeneutical devices. The debate was as much about the appropriate interpretive body whose intention should be consulted as about originalism and nonoriginalism. This section will illustrate the originalist elements in early constitutional interpretive thought. The history is illustrative, not exhaustive. The section emphasizes the historical antecedents of modern originalism not to prove that originalism was considered a primary or exclusive interpretive methodology, rather, to show that, quite contrary to Powell's thesis, within the time frame of the drafting, ratification, and early implementation of the constitution, originalism (through both originalist textualist and intentionalist interpretive strategies) [FN21] was considered one of many legitimate interpretive strat text.egies. *1187 Nevertheless, this section accepts and does not attempt to reprove Professor Powell's ultimate conclusion that the framers' principal interpretive focus involved ascertaining what the sovereign parties to the constitutional compact intended by the textual language they chose--a focus on textualism rather than intentionalism. The section points out, however, that this textualism was often originalist in form, a point not highlighted in Professor Powell's analysis. Furthermore, intentionalism, while advanced during this period, was considered neither the exclusive nor the predominant legitimate interpretive strategy. B. Originalism and the Adoption of the Constitution The ultimate faith of the framers of the Constitution in the power of the written word is not surprising. Eighteenth-century American society emerged from western European traditions in which written documents played powerful roles in controlling human behavior and shaping the structure of, and limits on, governmental power. Biblical texts and their interpretation had stirred major revolutions in both thought and deed in Europe. [FN22] The English legal tradition, while lacking a formal written constitution, had long relied on written documents to limit the prerogatives of the Crown and therefore the operation of government itself. These documents included the Magna Carta [FN23] and the Bill of Rights. [FN24] Given the corporate traditions out of which some of the earliest Anglo-American colonies emerged, the British crown relied heavily on written royal charters to place both geographic and substantive limitations on the reach of colonial authorities. [FN25] The earliest colonists generally followed suit and chose the written word to structure their secular and religious relations with one another, producing such great early documents of governance as the Mayflower Compact. [FN26] Faith in the written word was so strong that colonial authorities often entered into written treaties in English with Indian tribes that not only did not speak English, but had no concept whatsoever of a written language. [FN27] Written documents also played pivotal conceptual roles *1188 in the governmental theories of naural rights philosophers that so animated eighteenth-century thought and the Constitution. For example, to capture the essence of the social act involved in the individual's surrender of partial sovereignty to the state in the interest of order
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and security, John Locke focused on a written analogy--the social contract. [FN28] As the Revolution approached, protests against the Crown were presented in the form of written petitions and remonstrances or more informal written broadsides, sometimes published anonymously. [FN29] When the American colonists finally broke with England, they again chose the written form to symbolize, commemorate, and legitimate the event with Thomas Jefferson's drafting of the Declaration of Independence for the Continental Congress. [FN30] Continuing their love affair with the written word and its power to control human destiny and limit governmental abuses, most of the newly independent states soon adopted their own state constitutions and bills of rights. [FN31] The new central government rapidly followed suit with the drafting in 1777 and the adoption in 1781 of the nation's first written constitution--the Articles of Confederation. [FN32] The debates of the Constitutional Convention at Philadelphia reveal that the drafters believed strongly in the power of the written word to structure and limit the ongoing operations of government. Although these debates contained no detailed discussions of the intended interpretive methodologies, the approach taken during the Convention suggested an effort to refine the text to eliminate vagueness and ambiguity. The Convention began its deliberations by debating general principles rather than a precise constitutional draft. Thus, the early debates focused on the *1189 Committee of the Whole's consideration of the Virginia Plan presented by Edmund Randolph to totally restructure the central government and to jettison the Articles of Confederation. [FN33] During this period, Charles Pinckney of South Carolina [FN34] and William Paterson of New Jersey [FN35] also presented proposals to the Convention. After extended debate and amendment of the Randolph proposals and rejection of the less radical, state sovereignty oriented approach proposed by the small-state delegations in the New Jersey Plan offered by Paterson, the Convention chose to reduce the statement of general principles in the amended Randolph proposals to a draft document. To do so, the Convention established a Committee of Detail to transform the statement of general principles contained in the amended Virginia Plan into more precise language by preparing a draft of a new constitutional document. [FN36] Long and difficult debates ensued during which the delegates sought collectively to hammer out not only the principles animating the new constitutional document, but also the precise language to be used. [FN37] Not content with the resulting collective linguistic product, the delegates established a Committee of Style in the closing days *1190 of the Convention 'to revise the style of and arrange the articles' of the Constitution that had been agreed to. This committee went through the document with a fine-tooth comb, even pausing to insert a comma in the so-called exceptions and regulations clause to clarify the intended meaning. [FN38] It is difficult to read the debates of the Constitutional Convention without coming to the conclusion that the framers had a finite sense of the meaning of language and that they strove to use language precisely to control the governance of not only the contemporary generation, but also generations to come. Writing in an age before linguistic contextualism, [FN39] the framers at Philadelphia apparently had a fixed vision of the meanings of the terms they chose. They picked words quite carefully to convey precisely what they meant, no more and no less. Debates over the connotations of constitutional terms reflected a desire to avoid both imprecision and linguistic redundancy. [FN40] In some cases the framers deliberately chose constitutional terminology to create closed-textured phrasing to prevent future linguistic evasions of their intended meaning. Two small but illustrative examples of such drafting occurred in the alteration of the language of the presentment clause of article I, section 7, which mandated that all national laws be presented to the President for signature before entering into force, and in the amendment of article III that authorized federal courts to decide cases arising under the Constitution. As proposed by the Committee of Detail, the draft presentment clause read in relevant part: 'Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become [sic] a law, be presented to the President of the United States for his revision . . ..' [FN41] Some of the framers evidently were very concerned about limiting subsequent legislative efforts to evade the force of the presentment clause by styling new legislation as something other than a 'bill.' Thus, on August 15, James Madison observed that 'if the negative of the President was confined to bills; it would be evaded by acts under the form and name of Resolutions, votes &c.' He proposed that the phrase 'or resolve' be added after the term 'bill' in the presentment clause, 'with an exception as to votes of adjournment &c.' [FN42] While the delegates initially rejected Madison's proposal, *1191 Randolph renewed the point the next day, and the Convention voted nine states to one for Randolph's proposed language including 'every order, resolution or vote, to which the concurrence of the Senate and House of representatives may be necessary (except on a question of adjournment and in the cases hereinafter mentioned).' [FN43] This seemingly small debate illustrates the framers' views on originalism because it involves their search for linguistic devices to control the constitutional governance of future generations. A second example occurred when the framers seemingly sought through constructive legislative history to limit the
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meaning of the terms they employed in the judiciary article. Thus, when William Samuel Johnson proposed to include cases arising under 'this Constitution' in the statement of federal court jurisdiction, a debate erupted in which Madison 'doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature.' [FN44] Madison thought that ' t he right of expounding the Constitution in cases not of this nature ought not to be given to that Department.' [FN45] Ultimately, the Convention decided to limit the language by its constructive understanding. Madison's notes indicate that the Convention agreed to Johnson's motion, 'it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.' [FN46] This example, one relied upon by Professor Powell, [FN47] contains a fair amount of ambiguity. Professor Powell, without considering other interpretations, sees the example as evidence that the delegates at Philadelphia 'clearly assumed that future interpreters would adhere to then-prevalent methods of statutory construction.' [FN48] He therefore assumes that the language meant that the text of the amendment already included a constructive limitation. Equally plausible, however, is the suggestion that by their debates, the delegates, or at least Madison, meant to engraft a constructive limitation onto the text of the amendment--clearly an originalist approach. Precisely how this constructive limitation on the federal jurisdiction was to be communicated to the federal courts, however, was unclear from the debates. These small illustrations from the debates at the Philadelphia Convention suggest a number of points about the interpretive understandings of the delegates. First, the debates over the presentment clause nicely demonstrate Professor Powell's point that the framers principally relied on precise textual language, rather than resorting to 'legislative history' to clarify for future generations the precise meaning of the constitutional document. Second, these debates illustrate the framers' faith in the ability *1192 of language to control the governance of a nation over time. The framers assumed, rightly or wrongly, that the connotative meanings they assigned to words like 'resolutions,' 'votes,' or 'bills' would remain reasonably constant over time, thereby facilitating the document's ability to shape the constitutional governance of later generations. Third, the framers in both instances obviously thought their own sense of the constitutional terms ought to control rather than subsequent legislative rhetorical efforts to reinterpret or evade their efforts. Fourth, in the case of the presentment clause, the delegates clearly attempted to use rhetorical devices to create a closed-textured constitutional clause not susceptible to later expansion, evasion, or other malleability through the practiced art of interpretation. Through their alteration of the Committee of Detail draft of the presentment clause, the framers sought to make an all-encompassing statement binding on all future generations governed by their unamended constitutional document. They sought to govern the nation thereafter through their vision of presentment, not through a vision of that clause that later generations could, or would, read into the document. From this illustration, the presentment clause therefore was not, to borrow the prosaic phrase of Learned Hand, [FN49] and empty vessel into which later generations were invited to pour their favorite vintage wine. The delegates deliverately sought to impart to the clause a meaning with a distinct cast and flavor. Finally, the debates over the judiciary article suggest that the delegates may have attempted to engraft some unwritten limitations onto the language they used. Thus, they accepted Johnson's motion and yet 'constructively limited' the meaning of the adopted language to cases of a judicary nature. In short, these examples show that while the delegates principally relied on the precision of their language in the constitutional text to impart controlling meaning to their constitutional acts, they were not beyond resorting to constructive limitations on their language derived from their deliberations. This discussion also illustrates in microcosm several problems with Professor Powell's thesis. First, Powell's thesis seems bent on drawing a distinction between subjectivism and objectivism in interpretation, as if this line of demarcation animated the modern division between originalist and nonoriginalist thought. As argued at the beginning of this Eassay, however, such a line is illusory and does not accurately describe the current line of division between proponents and opponents of originalist interpretation. [FN50] The division between modern originalists and nonoriginalists turns instead on the question of the interpretive relevance of historical meaning, however derived, as opposed to contemporary meaning. Thus, some of the evidence Powell cites to refute originalism only refutes certain limited types of subjectivist arguments, while ultimately supporting the cause of originalism by suggesting the importance of originalist textualism during the *1193 formative period of constitutional history. [FN51] Second, Powell is surely correct insofar as he suggests that the framers' principal understanding of original intent derived from interpretive devices directed, sometimes from an originalist perspective, toward the language of the constitutional document, rather than through resort to the more modern techniques of historical analysis. This textualist focus of late eighteenth- and early nineteenth-century interpreters, however, easily can be misunderstood by a twentieth-century audience schooled in linguistic contextualism. This confusion emerges from Powell's equation, noted above, of historically bound subjectivist interpretation with originalism. Thus, he cites evidence to refute the originalist thesis suggesting a comparatively objective approach to text, a thesis which nevertheless is historically bound in suggesting that
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the text meant what the words meant when drafted. Indeed, Professor Powell draws a distinction between 'public meaning' and 'private intent,' [FN52] and seems uncritically to assume that this line coincides with the distinction between originalism and nonoriginalism. This equation is far from clear. Historical originalism can just as easily focus on the public meaning of text circa 1787-1789 as from the private meaning of the terms. The principal point of the originalist critique is to ascertain the meaning at the time the document was drafted, rather than approaching the text in the late twentieth century from an ahistorical interpretive perspective. An originalist can just as well derive original understanding from the then prevalent public understanding as from the private intentions of the delegates. The important point for the originalist is that the interpretation advanced constitutes an accurate depiction of the understanding, private or public, when the document was drafted. The framers' focus on language, however naive it may appear today, apparently assumed that words have a relatively fixed and unchanging meaning. The meaning of the words as understood by the framers at Philadelphia and in late eighteenth-century, post-Enlightenment society was to control, subject to subsequent constitutional amendment, of course, not meanings resulting from clever twists of the words by a twentieth-century society bombarded with Madison Avenue abuses of the Anglo-American language. In that sense, the foregoing debate illustrates certain originalist interpretive assumptions of the framers that revolve around the text, rather than the historiographic methods employed by modern originalists to probe the events surrounding the textual content of the Constitution. Powell reinforces this conclusion when he notes that, for the framers, original intent meant an interpretive focus on text rather than surrounding events or the debates at the Philadelphia Convention. Powell phrases his position, however, in a fashion suggesting the empty vessel *1194 approach to the text [FN53]--seemingly ignoring the important interpretive distinction between originalist textualism and ahistoric textual analysis--rather than suggesting an originalist approach to the text of the constitutional compact illustrated in these small microcosms of the constitutional debates. While the framers may not have intended the meaning attributed to the document by its authors to be the ultimate and true meaning of the document, they did believe that the general understanding of the terms used in the late eighteenth-century American society was the appropriate meaning to be imparted to the document. They had no idea that later generations might treat the text as a vehicle for imparting more modern and different understandings to their constitutional arrangements. When such efforts later emerged, surviving members of the Philadelphia Convention sometimes protected departures from their own earlier understanding of the meaning of constitutional text, as illustrated by Madison's remarks at the beginning of this Essay. Third, as these and later examples illustrate, Professor Powell's published work may insufficiently consider contrary evidence and alternative plausible constructions of the evidence upon which he relies. [FN54] *1195 The actual debates in the Constitutional Convention over the disposition of the journals and other records of the proceedings further confirm this understanding. Under the rules of the Convention, a journal was kept, but the rules provided '[t]hat nothing spoken in the House be printed, or otherwise published, or communicated without leave.' [FN55] On the last day of the Convention, immediately before the signing of the Constitution, the question of the disposition of the record of the Convention arose. Rufus King suggested 'that the Journals of the Convention should be either destroyed, or deposited in the custody of the President.' [FN56] King feared that public disclosure of the Journals would permit them to be put to hostile uses 'by those who would wish to prevent the adoption of the Constitution.' [FN57] James Wilson opposed destruction, indicating that at one time he had preferred destruction of the records, but had come to favor their preservation since 'as false suggestions may be propagated it should not be made impossible to contradict them.' [FN58] Immediately responding to Wilson's suggestion, the Convention voted ten states to one that the journals and other papers of the Convention be placed in the hands of George Washington, the President of the Convention. When Washington not unreasonably asked the Convention what it wanted him to do with the records, the delegates resolved that 'he should retain the Journal and other papers, subject to the order of Congress, if ever formed under the Constitution.' [FN59] This history suggests that the principal reason the delegates preserved the Journals and certain other papers from the Constitutional Convention was to facilitate their use in rebutting false suggestions propagated about the document or about the intent of the framers in its drafting. It also suggests that sensitivity about the publication of the Journals after the adjournment of the Convention [FN60] related primarily to concern about their abuse by antifederalist forces in expected ratification controversies, rather than to any perceived interpretive irrelevance of the records. [FN61] Indeed, the nature of this debate and the decision to preserve these records suggests the then perceived relevance of techniques of historiography to rebut 'false suggestions' about the Constitution and the Convention. While this debate illustrates the perceived interpretive relevance, but not conclusiveness, of the debates in the minds of the framers, it is not wholly unambiguous. It is *1196 unclear whether Wilson's comments were addressed only to falsehoods propagated in interpretive debates during the ratification struggle or to errors propagated in efforts to interpret and enforce the document after it entered into force. The Convention's ultimate disposition of the matter, however, suggests that the framers' attention was focused on using
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the Journals to rebut 'false suggestions' about the meaning of the constitutional text after the document entered into force. Thus, the Convention made the disposition of the Journals and other papers they placed in the temporary custody of Washington subject to the disposition of Congress if that body commenced operation under the document. Since Congress could not commence operation until after ratification of the document, the concern with preservation of the records of the Convention to rebut falsehoods must have centered on their value in later discerning constitutional textual meaning, or possibly in shedding light on the historical events at the Convention, rather than on their use in the ratification struggles. Statements by framers during the ratification of the Constitution and subsequent interpretation of the document indicate that many of those who attended the Philadelphia Convention and the later state ratification conventions believed in part in an originalist approach, albeit not necessarily a historiographic approach, to the interpretation of the text they had drafted. Perhaps most telling is the statement by James Madison that begins this Essay. Madison's comments simultaneously indicate an expectation that the text of the Constitution would be read consistently with interpretations known to its founders, and a frustration that those interpreting the document were taking 'its ancient phraseology . . . in their modern sense.' [FN62] Similar statements are peppered throughout the writings of important framers in the first years of national experience under 'this Constitution.' In response to claims by antifederalists that the express protection of criminal jury trial in article III in fact abolished civil jury trials under the statutory maxim of expressio unius est exclusio alterius, Alexander Hamilton advanced a textually focused interpretive approach in The Federalist No. 83: [T]he trial by jury in civil cases would not be abolished, and . . . the use attempted to be made of the maxims which have been quoted, is contrary to reason and common sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the ideas of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. [FN63] While the framers had faith in the clarity of their linguistic vision to control the future governance of the nation, their faith did not rest on text alone. Madison concluded The Federalist No. 48, in which he expounded his *1197 theory for the connecting and blending of the separate branches of government, by stating 'that a mere demarkation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.' [FN64] Thus, the framers' reliance on rhetorical devices was not exclusive; they deliberately relied upon structural arrangements involving both separation and blending of governmental powers in order to protect natural liberty and assure responsible government. C. Originalism and Early Nonjudicial Interpretation of the Constitution 1. Early Debates in Congress The early debates in Congress also reflect the willingness of participants in the Philadelphia Convention to resort to their recollection of the events surrounding the drafting of the Constitution to facilitate its interpretation. Abraham Baldwin of Georgia and Roger Sherman of Connecticut both had been members of the Philadelphia Convention and had served in the House of Representatives during the First Congress. Both repeatedly turned to their personal recollections of events at the Philadelphia Convention when constitutional interpretive and policy questions came before the House. [FN65] Similarly, Representative Elbridge Gerry of Massachusetts, who had served as a delegate in Philadelphia, resorted to his memory of the Convention during a debate over national power to assume state debts. Gerry said: Gentlemen have said, that it never was in contemplation to assume the State debts. When the present Constitution was under consideration in the General Convention, a proposition was brought forward, that the General Government should assume and provide for the State debts, as well as the debts of the Union. It was opposed on this ground, that it did not extend to the repayment of that part which the States had sunk, as well as that which remained unpaid; had it not been for this objection, I believe the very provision which gentlemen say was never expected, would have been incorporated in the Constitution itself. If I recollect rightly, it was also contended, in Convention, that the proposition would be useless, as Congress were authorized, under other parts of the Constitution, to make full provision on this head. From this circumstance, gentlemen will see that the assumption *1198 of the State debts was in contemplation from the very commencement of the new Government. [FN66] In the Senate, Charles Pinckney of South Carolina, another former Convention delegate, made similar references to the history of the Convention to punctuate his understandings of the Constitution. [FN67]
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Even Madison resorted during debates in the House to his recollection of the Convention, no doubt aided by his private journal of the deliberations. When the House debated the First Bank of the United States in 1791, Madison objected to its constitutionality and noted: [H]e had reserved to himself the right to deny the authority of Congress to pass it. He had entertained this opinion from the date of the Constitution. His impression might, perhaps, be the stronger, because he well recollected that a power to grant charters of incorporation had been proposed in the General Convention and rejected. [FN68] Madison's use of Convention history in this instance is quite telling since he relied upon it not to illuminate the meaning of particular textual clauses, but to suggest an implied negative on the existence of congressional power to create the bank, based on events that transpired at Philadelphia and were not reflected in the text of the document--an apparent originalist stance. 2. The Jay Treaty Debate in the House of Representatives The event that first galvanized conscious national debate on constitutional originalism occurred in 1796 when President Washington encountered opposition to his newly negotiated Jay Treaty. [FN69] Relying in part on its authority over appropriations, the House of Representatives demanded an equal role in approving a treaty that would become the supreme law of the land, notwithstanding the apparent primacy of the Senate in such matters under the provisions of article II, section 2, paragraph 2 of the Constitution. The House debated for one month and ultimately passed a resolution commanding that the negotiating instructions given the American commissioners in the treaty negotiations be delivered to the House. [FN70] The debate over the resolution pitted the new Jeffersonian majority in the House against a Federalist President and many old Federalist supporters of the original constitutional document. During the debate on this resolution, several former delegates to the Philadelphia Convention and other members of the House disclosed their interpretive approaches to the *1199 document. William Smith of South Carolina, a delegate to the South Carolina ratification convention, supported the President and argued that the Constitution 'must be our sole guide' and that 'the words' of the text were to be interpreted based on 'the general sense of the whole nation at the time the Constitution was formed, before any Treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the Constitution.' [FN71] He suggested that ' b y referring to the contemporaneous expositions of that instrument, when the subject was viewed only in relation to the abstract power, and not to a particular Treaty, we should come at the truth.' [FN72] Smith therefore cited debates from both the Virginia and Pennsylvania ratification conventions and argued that 'the practice of Congress had, from the commencement of its existence, been conformable to that opinion.' [FN73] Uriah Tracy of Connecticut resorted to textual and historical analysis. He quoted from the Virginia ratification debates to reflect an 'almost unanimous understanding of the members of the different Conventions' in the states. [FN74] He also quoted passages from The Federalist to support his construction of the document. [FN75] Similarly, Representative Richard Brent of Georgia turned to the ratification debates and made 'recourse to the pamphlet called The Federalist, as another authority to prove his construction.' [FN76] Criticizing Madison's political support for the resolution, Theodore Sedgwick of Massachusetts said: The capacity of that gentleman's mind, long exercised on political subjects; his known caution and prudence, would authorize a request that he or his friends would explain how it was possible, if such as he states should have been the intention of those who framed the Constitution, that the true meaning should not have been expressed in the instrument? That when the gentleman went from the Assembly which framed the Constitution, immediately afterwards, to one of those which ratified it, he should have admitted an opposite construction? [FN77] Sedgwick suggested that he could resort to the Virginia ratification debates to demonstrate the inconsistencies of Madison's position. [FN78] Prefacing his later extensive exposition of those debates, Sedgwick argued that ' a contemporaneous exposition of any instrument, and especially by those *1200 who were agents in its fabrication, had been allowed, and was, in fact, among the best guides to finding its true meaning.' [FN79] During the House debates, Benjamin Bourne cited extracts of the debates in the North Carolina ratification convention and voiced his belief that: [I]f this was the construction of the Constitution when it was adopted in the several States, would it not be a trick on the small States now to construe it differently . . .? . . . . . .. . . . [I]n obeying the Constitution, they should obey the voice of the people. If a doubt existed as to what was the true construction of the Constitution, he believed it ought to be conformed to the opinion which prevailed when the Constitution was adopted, and he had shown that the most eminent men had then but one opinion in relation to it; they
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all agreed that the power of making Treaties was vested exclusively in the President and Senate. [FN80] On the whole, the Federalist supporters of the President had both the text of the Constitution and the history surrounding its adoption and ratification on their side, and they used both extensively. Near the close of the debate, William Vans Murray of Maryland echoed Sedgwick's challenge to Madison. Directly challenging Madison, he noted: In the construction of other Constitutions, . . . we find the historian and the commentator obliged, in the support of theory, to resort to records unintelligible, from a change of names and of manners, or to the uncertain lights of mere tradition. But, in construing our Constitution, in ascertaining the metes and bounds of its various grants of power, nothing at the present day is left for expediency or sophistry to new-model or to mistake. The explicitness of the instrument itself, the contemporaneous opinions still fresh from the recency of its adoption; the Journals of that Convention which formed it still existing, though not public, all tend to put this question in particular beyond the reach of mistake. Many who are now present were in the Convention, and, on this question, we learned that a vote was actually taken. . . . One hundred years hence, should a great question arise upon the construction, what would not be the value of that man's intelligence, who, allowed to possess integrity and a profound and unimpaired mind, should appear in the awful moments of doubt, and, being known to have been in the illustrious body that framed the instrument, should clear up difficulties by his contemporaneous knowledge? Such a man would have twice proved a blessing to his country. [FN81] In his speech, Murray directly chastised Madison, who opposed the Jay Treaty and was uncharacteristically reserved during this debate, for failing *1201 to bring forward his understanding of the events at Philadelphia. [FN82] Writing under a pseudonym, Alexander Hamilton also debated these issues, arguing in part from an originalist perspective. He lamented: As to the sense of the Convention, the secrecy with which their deliberations were conducted does not permit any formal proof of the opinions and views which prevailed in digesting the power of Treaty. But from the best opportunity of knowing the fact I aver, that it was understood by all to be the intent of the provision to give to that power the most ample latitude to render it competent to all the stipulations, which the exigencies of National Affairs might require--competent to the making of Treaties of Alliance, Treaties of Commerce, Treaties of Peace and every other species of Convention usual among nations and competent in the course of its exercise to controul & bind the legislative power of Congress. [FN83] Therefore, in interpreting the Constitution, Hamilton in this instance resorted to his own recollections of the Convention and his understanding of the original intended meaning of the provision. [FN84] Hamilton went on, however, to make use of the available historical materials, noting that 'though direct proof of the views of the Convention on the point cannot be *1202 produced--yet we are not wholly without proof on this head.' [FN85] He pointed out that both Mason and Gerry had published dissents to the document, and he used both dissents to show that even the dissenters understood the treaty power adopted by the Constitution to be a broad power. [FN86] While he did not have available to him materials necessary to undertake the investigation, Hamilton suggested that interpretation of the Constitution could be informed by consulting 'the sense of the Community, in the adoption of the Constitution' as evidenced in two distinct sources--'the writings for and against the Constitution and the debates in the several state Conventions.' [FN87] Others, mostly Jeffersonian opponents of the Federalist President, attacked this resort to 'extraneous sources.' [FN88] Edward Livingston of New York, who introduced the resolution that provoked the debate, apparently recognized that history did not support his position. Thus, he argued: As to the construction generally received when the Constitution was adopted, [he] did not conceive it to be conclusive, even if admitted to be contrary to that now contended for; because he believed we were now as capable at least of determining the true meaning of that instrument as the Conventions were: they were called in haste, they were heated by party, and many adopted it from expediency, without having fully debated the different articles. [FN89] *1203 Even some Jeffersonian opponents of the Jay Treaty, such as Representative Benjamin Bourne of Rhode Island, were forced to concede, however, that the proper interpretation of the Constitution must resort to 'the opinion which prevailed when the Constitution was adopted.' [FN90] President Washington submitted a Message to the House of Representatives on the Jay Treaty, declining to comply with the resolution and setting forth his position on the issue. [FN91] In his Message, Washington noted that he had 'been a member of the General Convention' and thus and reason for 'knowing the principles on which the Constitution was formed.' [FN92] He claimed that the primacy of the Senate in such matters was a product of:
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[A] fact, declared by the General Convention, and universally understood, that the Constitution of the United States was the result of a spirit of amity and mutual concession. . . . [T]he smaller States were admitted to an equal representation in the Senate, with the larger States; and that this branch of the Government was invested with great powers; for, on the equal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially to depend. [FN93] Not content to rely on a general explication of political principles derived from the Constitution, Washington continued: If other proofs than these, and the plain letter of the Constitution itself, be necessary to ascertain the point under consideration, they may be found in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made, 'that no Treaty should be binding on the United States which was not ratified by a law,' and that the proposition was explicitly rejected. [FN94] Washington, however, did not rely solely on his own historical research into the Convention Journals. He also noted 'that this construction agrees with the opinions entertained by the State Conventions, when they were deliberating on the Constitution.' [FN95] Washington pointed out that opponents of the document during the ratification struggles had attacked the document for not requiring a vote on commercial treaties of two-thirds of the full membership of the Senate, rather than two-thirds of those present, and for not requiring a three-quarter majority for treaties involving territorial and other property claims. [FN96] In short, Washington's Message to the House obviously assumed an originalist position. Washington took one further step, however, that emphasized the originalism of his position. A week after the House initiated debate on the Jay Treaty, and five days before it asked the President to deliver to it the negotiating instructions on *1204 the treaty, Washington had deposited with Thomas Pickering, the Secretary of State, the Journals of the Philadelphia Convention that had been entrusted to his care until Congress called for them. During the debates preceding Washington's Message, Madison was relatively reserved, notwithstanding repeated challenges from Federalist supporters of the President to discuss the history of the Philadelphia Convention. He had unsuccessfully argued for a modification of Livingston's resolution to except papers that in the President's judgment 'may not be consistent with the interest of the United States, at this time, to disclose.' [FN97] Failing that, he had dispassionately analyzed the linguistic inconsistencies in the document, offered five alternative constructions, and argued for the construction that had the fewest difficulties [FN98] and 'gave signification to every part of the Constitution.' [FN99] Washington's use of the Convention Journals without authorization from Congress and his unilateral decision to deposit with the Secretary of State these documents entrusted to his personal care apparently infuriated Madison. In a letter to Thomas Jefferson written immediately after Washington's Message, Madison called the tone of the Message 'improper & indelicate.' [FN100] He urged Jefferson, who apparently had access to Madison's notes of the Philadelphia Convention, to consult those notes to confirm his recollection that the Convention had voted to keep the Journals secret until called for by a competent body. He rhetorically asked in light of that resolution, 'How can this be reconciled with the use Washington has made of it?' [FN101] Madison manifested his pique at Washington's Message in a lengthy speech delivered in the House. In this oration, Madison addressed the interpretive assumptions surrounding Washington's unauthorized resort to the Journals. Finally responding to Federalists who had challenged him to come forward with his own personal knowledge of the Convention, Madison said 'it was a matter of some surprise, which was much increased by the peculiar stress laid on the information expected. He acknowledged his surprise, also, at seeing the Message of the Executive appealing to the same proceedings in the General Convention, as clue to the meaning of the Constitution.' [FN102] Thus, Madison recognized that the President and his Federalist supporters had placed great interpretive stress on the original understanding of the framers during this important debate. He suggested that the former Philadelphia delegates had no particular obligation to supply the requested information to their political opponents: [N]either himself nor the other members who had belonged to the *1205 Federal Convention, could be under any particular obligation to rise in answer to a few gentlemen, with information, not merely of their own ideas at that period, but of the intention of the whole body; many members of which too, had probably never entered into discussions of the subject. [FN103] Madison also noted that since his recollection and interpretation differed from other members of the House who had been delegates to the Convention, 'there would not be much delicacy in the undertaking.' [FN104] Madison recognized that previously he had resorted to arguments based on original understanding of the Convention delegates during the debate on the creation of the First Bank of the United States. [FN105] He excused the apparent inconsistency with his contemporary position, however, by urging that he had made but a 'slight reference to the Convention' after several other participants had already commented on the proceedings. [FN106]
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Turning to his own purported interpretive stance, Madison stated that 'he did not believe a single instance could be cited in which the sense of the Convention had been required or admitted as material in any Constitutional question.' [FN107] Since the Journals had not then been published and the Convention had operated under a rule of secrecy, this was a perfectly logical outcome. Madison failed to point out, however, that this was due to lack of available evidence. On this point Madison may have been more incensed by the suggestion that members of the Convention could be called upon to testify to their personal recollections than by the idea that one could resort to a written record of the proceedings for elucidation. Thus, he noted that when debate over state sovereignty had emerged in the federal courts, members of the federal bench who had been delegates to the Convention were never called upon to expound their personal recollection of the proceedings on this important issue. [FN108] Ultimately, Madison summarized as follows his own position, at least for purposes of that debate, on the interpretive significance of the understanding of the delegates at Philadelphia: He then adverted to that part of the Message which contained an extract from the Journal of the Convention, showing that a proposition 'that no Treaty should be binding on the United States, which was not ratified by law,' was explicitly rejected. He allowed this to be much more precise than any evidence drawn from the debates in the Convention, or resting on the memory of individuals. But, admitting the case to be as stated, of which he *1206 had no doubt, although he had no recollection of it, and admitting the record of the Convention to be the oracle that ought to decide the true meaning of the Constitution, what did this abstract vote amount to? Did it condemn the doctrine of the majority? So far from it, that, as he understood their doctrine, they must have voted as the Convention did; for they do not contend that no Treaty shall be operative without a law to sanction it; on the contrary, they admit that some Treaties will operate without this sanction; and that it is no further applicable in any case than where Legislative objects are embraced by Treaties. The term 'ratify' also deserved some attention; for, although of loose signification in general, it had a technical meaning different from the agency claimed by the House on the subject of Treaties. But, after, all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution. To these also the Message had referred, and it would be proper to follow it. [FN109] Madison went on to cite debates in the Virginia ratification convention and the history of various amendments proposed by the ratification conventions to support his thesis that the treaty ratification power was limited and did not negate the role of the House in deciding whether treaties implementing important policies should become the law of the land. [FN110] Careful review of the comments of Washington and his Federalist supporters, as well as those of Madison, reveals a heavy emphasis on originalist interpretive strategies. They agreed that the document should be construed to have the meaning attributed to it by some group of persons at the time it was drafted and adopted. For Washington, Sedgwick, Vans Murray, and others, the group with the primary interpretive relevance was the set of delegates who met at Philadelphia through the summer of 1787 and drafted the language to be interpreted. Madison did not dispute that historiographic information had interpretive relevance to establish the true meaning of the document. Indeed, his resort to the debates during the ratification conventions confirms this originalist approach. Rather, Madison rejected the delegates at Philadelphia as the primary group of people whose interpretive vision should govern. Consistent with the theory of popular democracy that animated the document, as reflected in its preamble. [FN111] *1207 Madison suggested that the significant group to consult about intent was the body of citizens when the document was ratified. Their understanding, 'speaking through their delegates at the several State Conventions,' would constitute the true interpretation. [FN112] As noted above, however, Madison was less sanguine about the ability to arrive at certainty of the intent of multimember bodies. Nevertheless, these methodological difficulties did not prevent Madison from resorting to originalist interpretive strategies focused on the state ratification conventions rather than on the less supportive debates at Philadelphia. Madison's political opponent on this occasion, William Smith of South Carolina, also seemed to adopt Madison's popular sovereignty oriented interpretive stance, resorting to 'the general sense of the whole nation at the time the Constitution was formed'--the best evidence of which was 'contemporaneous expositions of that instrument.' [FN113] Careful review of these positions suggests then that both sides relied in part on originalist arguments. The disagreement between Washington and Madison lay not in the interpretive relevance of originalism, but over the appropriate historical sources to consult, particularly in light of the continuing veil of secrecy that the rules of the Philadelphia Convention had cast over the Journals and proceedings of that body. This originalist understanding of Madison's comments helps
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reconcile his position during this 1796 debate with his earlier behavior during debates on the national bank [FN114] and with his later originalist statements, such as the quoted remark that opened this Essay. [FN115] Reviewing these debates and other materials, Professor Powell concludes that '[o]f the numerous hermeneutical options that were available in the framers' day . . . none corresponds to the modern notion of intentionalism.' [FN116] While he notes that the late eighteen-century interpretive tradition centered on 'original intent,' Powell asserts that 'at the time, the term referred to the 'intentions' of the sovereign parties to the constitutional compact, as evidenced in the Constitution's language and discerned through structural methods of interpretation; it did not refer to the personal intentions of the framers or of anyone else.' [FN117] The debates in the House over the treaty power and the Philadelphia Convention's disposition of the Journals tend to discredit Powell's thesis. At the conclusion of the Convention, the delegates voted to preserve the Journals following a suggestion that their preservation was necessary to prevent 'false suggestions' *1208 about the Constitution after it entered into force. [FN118] Furthermore, during the 1796 debate in the House, Madison, Washington, and most of Washington's Federalist supporters and former alies in the constitutional drafting and ratification struggles did not think that the Constitution should be interpreted, to use Madison's later prosaic phrase, based on 'interpretations unknown to its founders.' [FN119] They all considered the founders' interpretations relevant and, indeed, the best evidence of the true meaning of any ambiguous portions of the constitutional text. While Madison noted the methodological difficulties inherent in such an inquiry, his principal disagreements with originalists among the Federalist members of the House was not over whether to undertake the originalist historical inquiry, but rather over who should be considered the 'founders.' While a number of Jeffersonians, mostly former antifederalist opponents of the Constitution, argued for an ahistorical interpretive methodology, their insistence on the irrelevance of constitutional history is hardly surprising. They had lost the political struggles over ratification and wanted the opportunity to reshape and reinterpret the constitutional compromises in a fashion less consistent with that history and more consonant with their own political philosophies. Indeed, Powell principally relies upon such Jeffersonian opponents of the President in his discussion of this important 1796 debate without ever acknowledging this major political dimension of the interpretive debate. 3. Subsequent Nonjudicial Comments on Originalism The available evidence from late eighteenth- and early nineteenth-century sources suggests that originalism was one of a number of interpretive strategies envisioned and employed during this formative period, but that it never was considered an exclusive interpretive methodology as modern day originalists sometimes imply. When approached about the desirability of publishing the Journals of the Convention, Gouverneur Morris, for example, doubted the Journals' interpretive relevance in most instances: [W]hat can a history of the Constitution avail towards interpreting its provisions. This must be done by comparing the plain import of the words, with the general tenor and object of the instrument. That instrument was written by the fingers, which write this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which expressing my own notions would not alarm others, nor shock their selflove, and to the best of my recollection, this was the only part which *1209 passed without cavil. [FN120] Thus, for Morris and many others, the primary interpretive approach to the document was a plain-meaning textual analysis. Except in limited cases such as the judicial article, where Morris thought the language might be more ambiguous, he thought that the language of the document itself could answer all interpretive questions. Other former members of the Convention, and Morris privately, were less sanguine about interpretive methods derived solely from textual analysis. Resort to the history and debates of the Philadelphia Convention sometimes was undertaken during both formal and informal congressional debates over constitutional power. [FN121] As Madison grew more hostile to the broad nationalist constructions the Marshall Court gave the Constitution, his private correspondence frequently reflected an originalist critique of such decisions. For example, in the wake of McCulloch v. Maryland, [FN122] Madison lamented to Judge Spencer Roane, Chief Justice of the Virginia Court of Appeals: [I]t was anticipated, I believe, by few, if any, of the friends of the Constitution, that a rule of construction would be introduced, as broad and pliant as what has occurred. And those who recollect, and, still more, those who shared in what passed in the State conventions, through which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification. [FN123] Indeed, when consulted in 1817 about the utility of publishing the Convention Journals, [FN124] Madison did not
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suggest the futility of such a history, but instead deferred to the Secretary of State, who possessed the document. [FN125] Similarly, in 1830 when Andrew Stevenson consulted Madison about his understanding of the provisions in article I, section 8 authorizing Congress to raise and spend money to provide for the common defense and *1210 general welfare, [FN126] Madison wrote a lengthy memorandum in which he offered his interpretation that the clause, derived from the Articles of Confederation, was intended to afford Congress the power to spend money only for purposes specified elsewhere in the Constitution. [FN127] In support of this conclusion, Madison carefully surveyed the available entries regarding the clause and its evolution in the then published Journals of the Philadelphia Convention. Thus, in Madison's terms, he in part sought 'the sense in which the terms common defense & general welfare were used by the Framers of the Constitution.' [FN128] Responding to this inquiry, however, Madison followed his own sense of propriety articulated thirty-four years earlier in the House debate over the treaty power by not resorting to his own notes for the history of the Convention. Instead he limited his historically based response to the published Journals, suggesting that 'I shall derive my construction of the passage in question, from sources of information & evidence known or accessible to all who feel the importance of the subject, and are disposed to give it a patient examination.' [FN129] *1211 Madison did not rest his interpretation exclusively on his research from the Journals, however, since he also extensively relied upon the history of the clause in the ratification conventions. [FN130] According to Madison, the meaning of the phrase turned in part on the manner in which it was 'understood by the ratification Conventions, or rather by the people who thro' their Conventions, accepted & ratified it.' [FN131] This remarkable exchange, more than three decades after the House debate on the treaty power, suggests that Madison's views had varied little since 1796. Madison's extensive resort to historical sources beyond the text of the document in this memorandum illustrates that the position he took both in 1796 and in 1830 was not opposed to originalism. Rather, Madison's dispute with Washington was over Washington's abuse of congressional privileges by unauthorized resort to the then unpublished Journals, a sensitivity similar to Madison's disinclination even in semiprivate correspondence to resort to his own unpublished journals to resolve interpretive debates. [FN132] This sensitivity also was evidenced by his insistence that the relevant universe of founders whose intent should be sought included not only the delegates to Philadelphia who drafted the constitutional proposal, but more importantly the people of the United States whose concurrence through their ratification conventions was necessary to ripen the draft document into a functioning constitution. While Madison's overall interpretive approach seemed reasonably consistent over time, there were periods in his career when he stated his position in such an extreme fashion that it might appear to be nonoriginalist. [FN133] Close analysis of these statements, however, generally reveals that Madison continued to emphasize his disinclination to prefer the interpretive understanding of the delegates at Philadelphia over the original *1212 understanding of the representatives of the people at the state ratification conventions. As he wrote in 1821, the duty of all was to support the Constitution 'in its true meaning as understood by the Nation at the time of its ratification.' [FN134] While such an originalist methodology may not be identical to the approach of an intentionalist who focuses for interpretive meaning exclusively on the delegates to Philadelphia, Madison nevertheless was advancing an originalist rather than an ahistorical understanding of interpretive methodology. Madison's historical search for original understanding of the Constitution was not limited, however, to the debates of the Conventions. In one of his last pronouncements on his interpretive methodology, Madison discussed in private correspondence whether the congressional commerce power reached the encouragement of domestic manufacturing. [FN135] He noted that while ' a ttempts had been made to show, from the journal of the Convention of 1787, that it was intended to withhold from Congress a power to protect manufacturer by commercial regulations,' [FN136] there were serious problems with merely relying on the outcomes of votes available from the Journals: [W]ithout knowing the reasons for the votes in those cases, no such inference can be sustained. The propositions might be disapproved because they were in bad form or not in order; because they blended other powers with the particular power in question; or because the object had been, or would be, elsewhere provided for. No one acquainted with the proceedings of deliberative bodies can have failed to notice the frequent uncertainty of inferences from a record of naked votes. [FN137] Not surprisingly, this critique of the Journals as an important source of interpretive understanding magnified the ultimate significance of his own then unpublished notes of the debates and deliberations of the Philadelphia Convention. Madison nevertheless suggested historical methods in addition to direct reliance on debates to flesh out the original understanding of the document. For example, he suggested that '[i]n expounding the Constitution and deducing the intention of the framers, it should never be forgotten, that the great object of the Convention was to provide, by a new Constitution, a remedy for the defects of the existing one.' [FN138] Among the defects he noted was the lack of power to regulate
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foreign commerce, including the protection of domestic manufacturers through duties and restrictions on imports. [FN139] Madison concludes, ' w ho will say that such considerations as these are not among the best keys that can be applied to the text of the Constitution? and infinitely better keys than unexplained *1213 votes cited from the records of the Convention.' [FN140] Again, Madison's interpretive concern was to find the soundest method for 'deducing the intention of the framers.' [FN141] He embraced, rather than rejected, the necessity of such a historical interpretive undertaking. Other writers of that day occasionally urged a more originalist approach to the interpretation of the Constitution. Writing in 1823, shortly after publication of the Convention Journals and the Yates notes and reminiscences, John Taylor, a supporter of Jefferson and an opponent of the broad construction given the Constitution under the Marshall Court, lamented: Had the journal of the convention which framed the constitution of the United States, though obscure and incomplete, been published immediately after its ratification, it would have furnished lights toward a true construction, sufficiently clear to have prevented several trespasses upon its principles and tendencies towards its subversion. Perhaps it may not be yet too late to lay before the publick the important evidence it furnishes. [FN142] The foregoing evidence suggests that, quite contrary to Professor Powell's thesis, originalism with varying methodologies was employed by the President, in Congress, and in other commentaries seeking to interpret the Constitution during the formative period of the late eighteenth and early nineteenth centuries. It also suggests that originalist interpretive methodologies were further fragmented between some like Washington and other Federalists who looked principally to the intent of the delegates at Philadelphia and those like Madison who sought the original intention of the Constitution from a broader universe of historical data, including the sense of the document as understood by the people through the debates at the ratification conventions and historically oriented interpretive methodologies aimed at discerning the then extant governmental problems the constitutional text was designed to cure. Finally, this discussion suggests that originalism was but one of a number of interpretive strategies employed during the formative period. It was not, as urged by some today, the exclusive interpretive methodology. D. Originalism and Early Judicial Interpretation of the Constitution The fact that historical originalism was not perceived as the exclusive, or even the predominant, interpretive strategy during the late eighteenth and early nineteenth centuries is not surprising in light of the general unavailability at that time of primary historical materials necessary to undertake originalist research. Not only were the Journals not published until 1819 and the Yates notes until 1821, but the entire Anglo-American legal tradition to that time had experienced little systematic publication, collection, and retention of legislative debates on either statutes or constitutions. *1214 As Professor Berger has noted, the practice during this period both in England and the United States did not involve the publication of legislative history other than through newspaper accounts. [FN143] Systematic publication of the legislative debates did not begin in England until 1803, when Thomas Hansard began to print Parliamentary Debates, and emerged much later in the American tradition. The Annals of Congress, for example, were not published until 1849. With respect to the Constitution, the publication of the Journals in 1819 provided the first fragmentary historical evidence of the debates at Philadelphia. Publication of the fragmentary notes of delegates, including those of Yates of New York, published in 1821 as Secret Proceedings and Debates of the Convention Assembled at Philadelphia in the year 1787, for the purpose of forming the Constitution of the United States of America, and of William Pierce of Georgia, first published in the Savannah Georgian in 1828, [FN144] followed shortly. It was not until the publication of Madison's notes in 1840, however, that comprehensive analysis of the debates could be undertaken from a relatively copious historical source. Nevertheless, two other useful sources of historical data were available-- The Federalist [FN145] and the debates of some of the state ratification conventions. [FN146] As noted above, those in Congress and elsewhere engaged in interpretive debate tended to make use of these available sources when convenient. The courts did not begin to cite extensively and to rely heavily upon primary historical materials in their constitutional interpretive efforts until well into the twentieth century. Nevertheless, the earliest Supreme Court opinions exhibit elements of originalism in scattered reliance on the principal source of such history that was then relatively readily available--The Federalist. [FN147] It is fair to say, as Professor Powell has argued, that the dominant interpretive theme in the early judicial opinions interpreting the Constitution rested on applying natural law principles to the plain meaning of the document. Thus, textualism played a very important role in most late eighteenth- and early nineteenth-century constitutional opinions. In Sturges v. Crowninshield, [FN148] Chief Justice Marshall succinctly stated the predominant textualist approach to constitutional interpretation in the early case law. Responding to arguments that the congressional bankruptcy power
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should not be construed to supersede state insolvency laws since such laws had been a feature of early colonial and state regulation and 'because we know from the history of the times, that the mind of the convention was directed to other laws which were fraudulent in character,' [FN149] Marshall argued: *1215 [A]lthough the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application. [FN150] While textualism, including originalist textualism, [FN151] was the predominant interpretive methodology before the Civil War, references to the then available historical materials are scattered throughout the pre-Civil War cases. Indeed, as noted below, after publication of Madison's notes in 1840, the following decade witnessed a brief surge of historically based intentionalist analysis in the lower federal courts. Perhaps the most readily available and most important primary historical source available during the first three decades of judicial interpretation of the Constitution was The Federalist, that erudite collection of pseudonymous newspaper essays penned by Hamilton, Madison, and Jay to convince the New York state ratification convention to approve the draft Constitution. [FN152] Many other such essays and broadsides were published, [FN153] *1216 but The Federalist earned the greatest fame. While due in great part to its breadth and depth of political vision, the fame of The Federalist also was greatly increased by the comparatively rapid collection and publication of the papers. The first thirty-six papers were collected and published together in late March 1788, while new contributions were still appearing. A second volume containing the remaining papers was published on May 28, 1788. Thus, even before the Constitution entered into force, The Federalist represented the single most accessible source of commentaries on the draft document. Almost as soon as the Supreme Court began interpreting the Constitution, it cited and relied on The Federalist, [FN154] using it simultaneously as an authoritative reflection of the framers' intent and as a persuasive treatise on the meaning of the Constitution. [FN155] While interpreting the meaning of the ex post facto law clause of article I, section 10 in Calder v. Bull, [FN156] Justice Chase suggested that The Federalist constituted a source superior to Blackstone and Wooddeson due to the authors' 'extensive and accurate knowledge of the true principles of government.' Chief Justice Marshall relied extensively on The Federalist, both overtly and, in some cases, without citing the document as the source of his arguments. In Fletcher v. Peck, [FN157] Marshall cited The Federalist and the House debates on the tenth amendment in interpreting the meaning of that provision. Presaging the argument he later made in McCulloch v. Maryland, [FN158] he suggested that the Articles of Confederation had limited the powers of Congress to those expressly granted, while in the tenth amendment 'the word expressly, was purposely rejected.' [FN159] Marshall's reliance on The Federalist increased in Cohens v. Virginia, [FN160] in which he looked extensively to the history of the Convention to interpret the clauses granting congressional power over the seat of government, stating: If we look into the history of the country, the debates of the conventions, or the declaration of the Federalist, we shall alike arrive at the conclusion, that this power was given, in consequence of an incident which had occurred in Philadelphia, and the necessity which thence seemed to result, of congress deliberating uninterrupted and unawed. [FN161] Subsequently, Marshall offered the classic statement on the authoritativeness of The Federalist: *1217 The opinion of the Federalist has always [been] considered as of great authority. It is a complete commentary on our constitution; and is appealed to by all parties, in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed. These essays having been published, while the constitution was before the nation for adoption or rejection, and having been written in answer to objections founded entirely on the extent of its powers, and on its diminution of state sovereignty, are entitled to the more consideration, where they frankly avow that the power objected to is given, and defend it. [FN162] Thus, Marshall advanced the authoritativeness of the essays both because, like any persuasive commentary on the law, they constituted an erudite and complete exposition of legal principles, and because the authors, having attended the Convention, were in a position to explicate the framers' intentions. The Federalist was authoritative not merely because it was persuasive, but also because it was originalist.
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Marshall made substantial use of The Federalist in many other important constitutional cases. He briefly cited it in Osborn v. Bank of the United States, [FN163] and made extensive use of it in interpreting the commerce power in Gibbons v. Ogden [FN164] and the copyright power in Wheaton v. Peters. [FN165] Even when Marshall did not expressly cite The Federalist, some of his arguments seemed directly appropriated from it without attribution. For example, in Marbury v. Madison, [FN166] Marshall's argument supporting judicial review seems to have principally derived from Hamilton's argument for federal judicial independence in The Federalist No. 78. [FN167] Similarly, as already suggested, some of the arguments offered in McCulloch v. Maryland [FN168] mimic positions advanced in Nos. 29, 33, and 44 of The Federalist. [FN169] Thus, Chief Justice Marshall appears to have been greatly influenced by the primary available historical source from which originalist arguments could be framed during his reign as Chief Justice. Even after Marshall's death, the Court continued to cite The Federalist, albeit with considerably less force, as the Taney Court inaugurated a less nationalistic era in federal constitutional law. [FN170] One frequency count reports that The Federalist was cited once by the *1218 Supreme Court during the pre-Marshall era, approximately sixteen times in fourteen cases in the period 1800-1840, and twenty-four times in seventeen cases in the period 1840-1860. [FN171] Significantly, however, thirteen of the twenty-four citations (about fifty-five percent) reported in the period 1840-1860, the height of the Taney Court era, occur in dissents, while only four of the sixteen (twenty-five percent) such citations during the period 1800-1839, predominantly the Marshall Court era, constitute dissents. The inferior federal courts also relied upon The Federalist in their early interpretive efforts. During the Marshall period, these courts took their signal from Cohens and Calder and relied on The Federalist as a precedent, a noted commentary, and an originalist expression of true meaning of the document. In United States v. The William, [FN172] the court cited The Federalist in interpreting the scope of federal judicial review under article III, noting the high esteem in which it was held in Calder and proclaiming that ' i f we love and cherish that constitution, we shall highly esteem this excellent commentary on that precious instrument.' [FN173] A Massachusetts circuit court called The Federalist 'a work of the very best authority.' [FN174] Even after Marshall's death and the rise of the Taney Court, resort to originalist interpretive strategies in the inferior federal courts accelerated. While the Supreme Court at the time mostly ignored originalist history, particularly the then recently published debates of the Philadelphia Convention as reflected in Madison's notes, the lower federal courts during the 1840s evinced an increasing interest in using primary historical documents in the interpretive process. The Federalist played a particularly important role in this process. In The Huntress, [FN175] a district court invoked The Federalist to construe the scope of admiralty jurisdiction conferred in article III, calling it 'the contemporaneous construction of the constitution' that 'shared and expressed the common feeling and opinion of the convention.' [FN176] The lower federal courts, however, broadened their historical *1219 inquiry during this period to include the state ratification debates and, after they became available through publication of Madison's notes in 1840, the debates at the Philadelphia Convention. While the debates in the state ratification conventions were widely reported in newspapers of the day, they were not widely available to courts. Unlike The Federalist, such reports were not rapidly collected into published volumes, and the difficulties of transportation probably precluded convenient resort to whatever newspaper archives existed at distant sites. Nevertheless, some courts began to resort to this historical source for interpretive guidance, relying on common recollection and knowledge rather than detailed research into primary historical sources. [FN177] In particular, during the 1850s reference was made to the state ratification debates in an effort to defend the federal Fugitive Slave Act against attack from the increasingly abolitionist northern states. [FN178] A decade after publication in 1830 of the first edition of Elliot's Debates, [FN179] a collection of available records of the debates at the state ratification conventions, a number of federal courts regularly resorted to this source to illuminate the meaning of particular constitutional clauses. [FN180] The publication of Madison's notes in 1840 sparked a renewed interpretive interest in the treasure of historical material that his papers contained. Thus, in the following two decades, Madison's papers were frequently referred to in federal court decisions interpreting the Constitution. Their first use in a Supreme Court case appears to come, but one year after their publication, in The Amistad, [FN181] in which they were cited to demonstrate that while the Philadelphia Convention recognized slavery as an existing institution, the delegates 'were careful to exclude from that instrument every expression that might be construed into an admission that there could be property in men.' [FN182] The Court also cited Madison's notes extensively a decade and a half later in the infamous slavery case, Dred Scott v. Sanford, [FN183] and in a number of other cases on various issues in the *1220 interim. [FN184] Thus, originalism was employed in the pre-Civil War era. As Sturges v. Crowninshield indicates and Professor Powell has nicely demonstrated, originalism was not the exclusive or predominant interpretive methodology. Powell, therefore,
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clearly is correct in suggesting that the principal interpretive focus of the late eighteenth and early nineteenth century was on textual exegesis and precedent rather than on historiographic interpretation. When the historical materials were used during this formative period, they were sometimes invoked as if they were simply another precedent, even though they fit only awkwardly into the system of stare decisis of the day. Other times, however, as in Chief Justice Marshall's comments in Cohens, the originalist assumptions of the interpreter relying on these materials are clearly revealed in the opinion. While not the principal method of constitutional interpretation, originalist interpretation in all its forms, including intentionalism, was employed often during this period in both Congress and the courts. [FN185] Originalism therefore neither was demonstrably originally intended as an exclusive interpretive methodology, as some modern originalists imply, nor was it unknown to the framers and early interpreters of the Constitution, as argued by Professor Powell. From this analysis and Powell's demonstration of the importance of textualism in early interpretation, it is evident that originalist interpretation, while known, discussed, and employed during the formative years of constitutional interpretation, constituted neither a predominant nor exclusive interpretive methodology. Any defense of the modern originalist constitutional interpretation position therefore must depend on a nonoriginalist premise. [FN186] A defense cannot rest on the premise, often assumed by modern originalists, that intentionalist methodology was constitutionally and historically mandated as the primary mode of interpreting the document. III. HISTORICAL METHODOLOGY AND ORIGINAL UNDERSTANDING A. Ahistorical Tendencies in the Debate over Originalist Interpretation The current debate over originalist interpretation highlights ahistorical tendencies on both sides of the issue. While the nonoriginalists obviously eschew the interpretive significance of historiographic research, the manner *1221 in which some originalists have conducted their interpretive campaign often suggests that they are oblivious to the legal and intellectual history of the nation, and in particular the history of the jurisprudential trends that have animated the development of American law. Thus, the history that certain originalists produce to defend their positions often has a peculiarly ahistorical flavor, attempting to interpret the primary historical materials through the jurisprudential lenses of entirely separate eras. A paradigm of this problem is the work of the prodigious originalist historian, Professor Raoul Berger. To illustrate the point, it is worth focusing on Berger's critique of 'arguments for judicial power of revision,' as he calls nonoriginalist interpretive methodologies in his book, Government by Judiciary. [FN187] With hardly a mention of the differences in the intellectual or jurisprudential histories of the periods in which the statements were uttered, Berger lumps together quotations from Chief Justice John Marshall, Justices Oliver Wendell Holmes and Felix Frankfurter, and other twentieth-century writers as if they collectively urged a late twentieth-century version of the nonoriginalist interpretive power that Berger calls a power of judicial revision of the Constitution. [FN188] This ahistorical approach to the historical materials ill serves accurate understanding of the statements being evaluated. It analyzes isolated quotations out of context through the writer's own jurisprudential philosophy rather than through the jurisprudential and intellectual preconceptions of the era in which they were made. Fundamentally, Berger sets out to prove a point summarized succinctly by James McClellan in a footnote at the opening of Berger's analysis--that 'the doctrine of the living Constitution amounts to little more than the willful disregard of the expressed or implied intent of the framers.' [FN189] Significantly, this statement assumes that the framers intended a static rather than an evolving interpretive meaning for the document. This assumption fits well with Berger's positivist interpretive methodology, but only partially matches the historical data, as suggested above. Nevertheless, Berger never questions the accuracy of this assumption. Berger begins his historical critique of the jurisprudence of constitutional revisionists with a brief concession to the historical evolution of *1222 jurisprudence, noting that '[w]here early claims to extraconstitutional power were made in the name of 'natural law,' the present fashion is to invoke the 'living Constitution' when it is sought to engraft or amputate a limb.' [FN190] While seemingly recognizing that the intellectual conventions of the two eras differed, Berger does not further pursue the point. He then focuses attention on certain statements in Chief Justice Marshall's opinion in McCulloch v. Maryland [FN191] to show that Marshall advanced this view and that his claims ' a t best . . . represent ed a self-serving claim of power to amend the Constitution.' [FN192] He then equates Marshall's position with those of late nineteenth- and early twentieth-century jurists and writers, including Justices Holmes and Frankfurter and Professors Thomas Grey and Louis Lusky. [FN193] The problem with this topically oriented group treatment is that it reasons anachronistically, imposing the writer's contemporary perspective on the data and almost wholly ignoring the intellectual history of the eras in which these writers were advancing their views. This anachronistic approach to ascertaining historical meaning obscures understanding of the ideas expressed.
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The intellectual history of an era often profoundly affects the manner in which new ideas, including approaches to law and its uses, are conceived during that period. The post-Enlightenment period of the late eighteenth and early nineteenth centuries was profoundly affected, for example, by the weltanschauung created by the newly discovered Newtonian physics. Suddenly, the universe had become an arena governed by mathematically precise, discoverable rules. It was a machine set in motion with deterministic, universal principles of physical dynamics. [FN194] This world view is echoed in the secular natural rights jurisprudence of the era. The task of the jurist was to discover the rules of law governing the natural order of the human social, economic, and political universe and to enforce those rules to protect these basic normative principles, described in our Declaration of Independence as 'certain inalienable Rights.' [FN195] These normative rights were axiomatic and immutable principles, just as the law of gravity in Newton's carefully constructed physics. Thus, various secular natural rights philosophers who sought to discover and expound these basic principles, including *1223 John Locke [FN196] and Montesqieu, [FN197] had a profound impact on the shaping of both our Constitution and the interpretive approaches taken to the document. The Constitution was not a set of popularly ordained principles that had force merely because of their authoritative declaration by the people's representatives in the Constitutional Convention and the state ratification conventions. Rather, it was a carefully crafted document in which those representatives sought to design a government reflecting their understanding of natural rights principles. The constitutional mandate flowed both from the fact that the people had participated in the delegation of their inherent sovereignty to the government in this social compact and from the fact that the document represented and protected the natural rights principles of governance that they believed should animate all governmental organizations. [FN198] Thus, in early interpretations of the Constitution, natural rights jurisprudence played an important role--occasionally providing grounds for decision, but, more importantly, informing the interpretive approach that the judges took toward the document. For example, even before Marshall joined the Court, Justice Chase in Calder v. Bull [FN199] announced a natural rights approach toward enforcing and interpreting the Constitution. He said: I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the constitution, or fundamental law of the state. The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the federal, *1224 or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. [FN200] Chief Justice Marshall also was influenced by and invoked natural rights interpretive approaches. His opinions from Marbury to McCulloch are peppered with the natural rights interpretive style, purporting to discover and apply axiomatic natural law principles of government. [FN201] Marshall's opinion in McCulloch therefore must be read in light of the natural law theories that animated his approach. Thus, Marshall argues that the federal government was entrusted with 'the great powers, to lay and collect taxes; to borrow money; and to regulate commerce' [FN202] and therefore: [m]ust also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. . . . This could not be done, by confiding the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, . . . To have prescribed the means by which government should, in all future time, execute its powers, would have been . . . [to invest the Constitution with] the properties of a legal code. [FN203] Yet, Berger treats Marshall's famous maxims in McCulloch that the 'constitution [was] intended to endure for ages to come' [FN204] and that 'we must never forget that it is a constitution we are expounding,' [FN205] as if they represented 'a self-serving claim of power to amend the Constitution.' [FN206] He lumps these statements together with later pronouncements of Holmes and Frankfurter to suggest that an illegitimate judicial power-grab was afoot in McCulloch. *1225 Berger's historically insensitive approach obscures Marshall's point. The crux of Marshall's position in McCulloch was that the basic and natural principles of government compel a construction of the Constitution that generates the doctrine of implied powers for which the McCulloch decision has become famous. As Marshall put it: If any one proposition could command the universal assent of mankind, we might expect it would be this--that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result,
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necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. . . . . . . A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. [FN207] Marshall resorted to natural law principles repeatedly in explicating his conception of the Constitution. He saw the Constitution as a giant machine, the basic rules of which were evident; thus, one could deduce 'from the nature' of those rules the interstitial components of the mechanism. The idea that the Constitution was intended to endure for the ages and should be liberally and flexibly interpreted with those objects in mind was not a self-serving judicial aggrandizement of national power, as Berger suggests, but a conscientious effort by Marshall to explicate his sense of the natural law principles that animated the constitutional document. This principle was not engrafted onto a constitutional document that lacked it, as Berger suggests. To Marshall's way of thinking, it was discovered in the Constitution through deductive exploration of the nature of the document. Neither was it an invitation to cause constitutional growth or change. The post-Newtonian mechanistic vision of natural law thinkers such as Marshall relied on deducing conclusions from deterministic natural law principles embedded in either the text or spirit of the constitutional document when it was framed, rather than from later discovered principles gleaned from subsequent political and legal experience. Constitutional flexibility was a principle deducted from the very nature of the document, like the law of gravity is discovered in the physical nature of the universe. This principle was necessary because it lubricated the constitutional mechanism and reduced its self-destructive friction over time. Therefore, even Marshall legitimately could deny that such constitutional flexibility was an invitation *1226 to change the document. [FN208] It could not alter the document if it constituted an inherent part of its composition from the beginning. By contrast, the waning influence of Newton as an intellectual force and the rise of social Darwinism of the late nineteenth century produced a very different weltanschauung regarding constitutional change and interpretation during the very late nineteenth and early twentieth centuries. [FN209] The idea of an organic or evolving Constitution was much more the product of late nineteenth- and early-twentieth century jurisprudence and intellectual developments than anything that Marshall had to say. Thus, in Missouri v. Holland, [FN210] Justice Holmes wrote: [W]e must realize that [the words of the Constitution] have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in light of our whole experience and not merely in that of what was said a hundred years ago. [FN211] The reference to the document as an 'organism' and the focus on the evolutionary experience of this social entity demonstrate the strong emphasis of Darwinian evolutionary thought on Holmes' conception of the interpretive enterprise. This theme was evident much earlier in Holmes' The Common Law, [FN212] suggesting that ' t he life of the law has not been logic: it has been experience.' [FN213] At a constitutional level, Holmes' statements are echoed in the later statements of Justice Frankfurter. Berger notes Frankfurter's 'revisionary' approach in Youngstown Sheet & Tube Co. v. Sawyer, [FN214] relying on Frankfurter's assertion that ' i t is an inadmissibly narrow conception of *1227 American constitutional law to confine it to the words of the Constitution and to disregard the gloss that life has written about them.' [FN215] Elsewhere in the same opinion Frankfurter states that ' d eeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation; but they give meaning to the words of the text or supply them.' [FN216] Clearly, the evolving Constitution that Holmes and Frankfurter advanced had little to do with the natural law interpretation offered by Marshall other than that both result in flexible, broad constructions of the document. For Marshall, the natural law principles from which appropriate interpretive choices were to be made were embedded in the text, nature, and spirit of the constitutional document at the time it entered into force. While these principles would be applied to new and unforeseen situations over time, the principles did not change--only their contextual application differed. Since one of those principles was flexibility of interpretation, the mechanism for constitutional growth did not involve altering the original natural laws of the Constitution, but only applying them. By contrast, for post-Darwinian
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jurists, growth and evolution of law were far more natural phenomena than deterministic constitutional mechanisms that anticipated perpetual constitutional motion. Flexibility was no longer a constitutional law of nature, it was a descriptive fact of the evolution of constitutional history. In a post-Darwinian legal world, constitutional principles, like all biological processes, evolved over time. Constitutional law no longer constituted a deterministic set of principles set in motion by the sovereign act of ratifying a new constitutional document; it was, in the minds of these post-Darwinian jurists, a growing, changing, and evolving set of legal norms. By anachronistically reviewing the historical materials and the case law from his own jurisprudential preconceptions, and by ignoring the intellectual history of the period during which these statements were made, Berger managed to lump these two quite different perspectives together in a fashion that poorly serves our complete understanding of each viewpoint and totally fails to explore the jurisprudential underpinnings of the writer's own viewpoint. This illustration raises two very important questions about the debate over originalist interpretation: (1) what is the appropriate methodological approach for any historical search for original understanding? and (2) what are the intellectual roots of the present stress on deterministic originalist interpretation? B. Methodological Concerns in Investigating Originalist History In a recent, thoughtful analysis of the significance of history to constitutional adjudication, Professor William Nelson discussed two competing methodological models of history, contextualism and descriptivism, and analyzed their significance and use in constitutional interpretation. [FN217] *1228 While the approach of this Essay departs radically from that offered by Nelson, his explanation of the two dichotomous paradigms for historical research bears careful analysis. It provides a useful starting point for any analysis of the methodology of searching out original intent. As delineated by Nelson, contextualist historians proceed on two important methodological assumptions. First, the historian's very act of elaborating the history of past events and making them meaningful and understandable in the present necessarily changes the meaning of those events. [FN218] This assumption, like Heisenberg's uncertainty principle in physics, [FN219] postulates the existence of induced measurement error to the very process of researching history. Second, since historians must choose between alternative plausible interpretations of the past, such as equally possible alternative constructions of textual language, they must make such choices on some basis external to the primary historical facts themselves. [FN220] Thus, according to Nelson, ' a contextualist historian selects one historical interpretation in preference to another on the basis of its consistency with his own value system or world view, or that of his audience.' [FN221] The historian's overall vision or political viewpoint constitutes the fundamental methodological crucible in which data is selected or rejected, and against which alternative explanations are weighed and measured. By contrast, a descriptivist historian assumes that through methodologically sound scholarship 'good history can accurately portray past reality.' [FN222] According to Nelson, the descriptivist historian measures alternative plausible hypotheses against the twin tests of credibility and complexity. [FN223] Credibility, as the name suggests, is a test of subjective believability informed by human judgment and experience. Complexity postulates that since the reality of human affairs tends to be more complex than the linguistic conventions used by historians to capture it, the historical explanation that is more complex should be preferred over the more simple depiction in situations when all other indications of credibility are otherwise equal. [FN224] While this Essay will question certain aspects of Nelson's methodological paradigm of descriptivist history, the important point for present purposes is that descriptivist history, unlike contextualist portrayals, purports to discover a historically correct depiction of past reality and to test the accuracy of that depiction through standards that ostensibly are external to the normative judgments of the researcher. These two models of history, as Nelson notes, proceed from fundamentally opposed views of the basic nature of knowledge [FN225] that cannot be addressed fully within the scope of this Essay. *1229 Analyzing the potential contributions of each of these two distinct paradigms of historical methodology to the originalist interpretive quest, it is apparent that only the descriptivist model of historical research is consistent with the originalist thesis. The entire point of the originalist interpretive tradition is to legitimize an interpretive judgment on the basis that the applied standard is external to the interpreter. For this purpose, either the interpreting judge or any historical scholar upon whom the judge places reliance could be considered the interpreter. Certainly, the originalist critique of modern ahistorical constitutional interpretation is not satisfied if the interpreter supplies an external interpretive standard by merely substituting the subjective values and viewpoints of a contemporary historian for the interpreter's own normative perspective. Since contextualist history is filtered methodologically through the values, vision, and political preferences of the contextualist historian, logically it is of little, if any, probative value in the originalist quest for externally based interpretive meaning. Such portrayals of the past designedly are colored by the same contemporary
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value preferences that might animate judicial ahistorical interpretations. There is no apparent logical reason to prefer the ahistorically derived normative preferences of judges to the historically enshrouded value preferences of researchers, be they jurist or academic. Only a descriptivist historical researcher who approaches the historical materials with an ostensible goal of portraying a value-neutral rendition of past reality can have any hope of supplying the external basis of decision demanded by the originalist interpretive approach. Contextualist history's lack of utility in the quest for original understanding for interpretive purposes does not mean, however, that such historical portrayals utterly lack merit. Aside from the inherent insights that such contextualist portrayals supply about the past and its relationship to our present, they also provide useful sounding boards against which to evaluate contemporary normative preference. Thus, adopting a nonoriginalist neutral-principles approach to constitutional adjudication, Nelson argues that postadoption constitutional history often provides valuable insights in constitutional adjudication that assist in supplying the neutral principles upon which he believes constitutional adjudication must rest, [FN226] a point to which this Essay will return in the last section. [FN227] The significant point here is that the contextualist portrayal, while valuable in other contexts, avowedly does not provide the requisite external standards demanded of originalist interpretation. Indeed, the problem with much of the debate over originalist interpretation involves the invocation of contextualist history to defend originalist positions. This is precisely the problem observed above with Raoul Berger's portrayal of the historical arguments for what he inappropriately characterizes as a judicial power of constitutional revision. Many of the criticisms of Berger's work, and that of other originalist thinkers, turn on the value-laden nature of their historical portrayals that profess historical *1230 neutrality [FN228]--an effort to palm off contextualist history as a portrayal of an objective past reality. Indeed, as Berger's critique and the one offered in this Essay of Professor Powell's attempted proof of the nonoriginalism of intentionalism have shown, [FN229] the same problem sometimes exists in the efforts of nonoriginalists to make points through historiographic techniques. Since contextualist methodology by definition assumes that more than one correct portrayal of past events is possible, such use of contextualist history in defense of originalist interpretation perverts the assumptions that underlie both the historical and the interpretive undertakings. By contrast, the descriptivist historian methodologically purports to eschew reliance on personal or contemporary values or vision. The descriptivist seeks to portray a single correct rendition of past reality. Some of the criticism of originalism, particularly that lodged by Paul Brest, [FN230] attacks the very nature of this vision of history. These critics suggest methodological problems in ascertaining the collective intent of the multimember bodies that drafted and ratified the Constitution, and further indicate that all renditions of past reality are filtered through contemporary judgments that obscure the attainment of an objectively correct vision of the past. [FN231] In light of these attacks, careful attention should be given to the methodological assumptions of descriptivist history before any reliance can be placed on it in constitutional interpretation. While ultimately dismissing descriptivism, Nelson concedes that critical descriptivist historians such as R. G. Collingwood, [FN232] Oscar Handlin, [FN233] and J. H. Hexter [FN234] recognize that 'a historian's account of the past is necessarily colored by the questions that he asks in the course of sifting through the record.' [FN235] For Nelson, however, the descriptivist must always find 'one correct interpretation' [FN236]--an explanation that is, in the words of Collingwood, 'right: which means, for him, that it shall follow inevitably from the evidence.' [FN237] As noted above, Nelson sees the methodology of the descriptivist historian as animated by the dual tests of credibility and complexity--the credibility of the portrayal to the researcher and the preference for the more complex portrayal of past reality when all other indications are equal. Fundamental to Nelson's critique of descriptivist history is his observation that the test of credibility introduces a contemporary personal element into the interpretive decisionmaking process, thereby precluding interpretation wholly derived from external criteria. [FN238] Nelson makes this point in two ways, which he unfortunately does not carefully separate. First, *1231 he notes that the experiential judgments that inform the credibility determination are colored by a person's contemporary moral, political, and religious value preferences. [FN239] Second, he points out that while contemporary credibility decisions often animate the legal decisionmaking of judges and juries, these contemporaneous factual credibility problems are as complex as the historical credibility questions of constitutional, or, as Nelson puts it, legislative fact that must be made in the originalist approach to interpretation. [FN240] Nelson's first point is a methodological one, while his second point is addressed to comparative institutional competence. The latter point is easily addressed by simply noting that the lack of sophistication of judges in techniques of descriptivist history can be remedied. Judicial historical sophistication can be increased through the schooling of the bench in such techniques, either formally or through the normal judicial educational channels of briefing and oral argument. The
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judiciary also may recognize their shortcomings in this area and place increased reliance on the work of skilled descriptivist historians. While Nelson notes that juries often make factual credibility judgments, [FN241] juries have no importance whatsoever in the constitutional interpretive process, which only involves questions of law beyond the reach of jury decisionmaking. Therefore, for purposes of constitutional interpretation, there is no reason to be concerned with the continual recycling of jury personnel. Thus, Nelson's primary criticism of descriptivist history's utility in constitutional interpretation must rest with the methodological shortcoming that he sees in the approach--the failure to achieve normative detachment from the interpretive process because contemporary moral and political judgments color the crucial credibility judgment that lies at the core of the descriptivist quest. This critique of descriptivist history, while ultimately containing an important kernel of truth, partially misstates the descriptivist technique and underestimates the power of that methodology to minimize the contemporary and personal normative elements of the depiction of past events, Nelson's description seems to assume that a descriptivist will always come to one, and only one, correct depiction of past reality. As stated by Nelson, the position seems to assume the inevitable discoverability of a single correct answer. [FN242] While descriptivism certainly postulates the inability of two completely opposed perspectives on past events to accurately coexist, it need not, and does not, postulate that there is inevitably a single discoverable correct answer to every historical or interpretive question. A single correct answer to a question could be undiscoverable for a number of reasons. First, historical data upon which to make the judgment simply may be either unavailable or so hopelessly one-side that the investigator knows from the outset that the depiction the data portrays will not be an accurate re-creation of past reality. For example, discovering answers to a number of important questions in the ethnohistory of Native *1232 American affairs in the geographic area now comprising the United States is severely complicated by the lack of any known written Indian language before the nineteenth century. Thus, ethnohistorians are painfully aware that their accounts of the history of early contact between European colonial settlers and the indigenous Native American civilizations are deeply colored because the written historical materials on which they rely derive almost exclusively from the non-Indian side of the saga. [FN243] Furthermore, using the classic tools of the historian to re-create the history of Native American affairs before colonial contact, such as chronicling the disappearance of the Anasazi of the Southwest or the late Mississippi Valley civilizations, obviously constitutes a hopeless task. This observation explains why such issues are relegated to the distinct methodologies of archaeology or anthropology, but not history, for investigation. Second, in some instances the interpretive question posed either abviously is not historically resolvable or turns out, upon due investigation, not to be resolvable on the basis of the available historical materials. This statement often is true of issues surrounding the application of asserted normative constitutional principles to new technological innovations or to contexts radically different from situations the framers had in mind. For example, the advent of manned flight legitimately might have raised questions about whether the congressional powers in article I, section 8 '[t]o raise and support Armies' [FN244] and ' t o provide and maintain a Navy' [FN245] encompassed the creation of an air force without the necessity of constitutional amendment. Putting the originalist interpretive methodology to an ultimate test, the appropriate inquiry in this case should be whether the framers used these terms, as well as the constitutional phrase 'land and naval Forces,' [FN246] to encompass an air force. If an interpreter is truly and exclusively committed to originalism in constitutional interpretation, as some current commentators purport to be, then this question should only be answered by asking what the framers had in mind at the time they drafted and adopted the above-quoted phrases. Obviously, the delegates to the Philadelphia Convention and the state ratification conventions neither knew of nor considered manned flight! Thus, from an originalist perspective, no direct historical answer is possible to the precise question needing resolution. This example highlights an important point about both descriptivist historical methodologies and originalist interpretive strategies--while they are capable of resolving some questions, including many interesting questions, neither is capable of resolving all interpretive questions that might arise. This observation immediately requires the circumspect originalist either to concede that originalism cannot constitute an exclusive interpretive strategy or to outflank the critic by offering a variant on originalist, descriptivist history. One important variant often advanced by originalist historians is to suggest that one can glean normative constitutional concepts, *1233 to use Ronald Dworkin's terminology, [FN247] from the historical materials which then legitimately can be applied to newly emergent factual contexts that may not have been within the framers' original conception. The problem with this analytical evasion from an originalist perspective is that it merely pushes the historical inquiry one step backward. The question remains whether the normative concept, the level of abstraction of the concept, and the application boundaries of that concept actually can be found in those historical materials or, rather, constitute the product of more contemporary normative values. In this context, the level of abstraction at which the normative concept is stated may be critical to the analysis. For example, is the normative principle derived from investigating the history of the first amendment's establishment clause merely the building of a
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fiscal wall of separation between church and state, or does it include broader concepts of separation that prevent state encouragement of particular religions or religion in general? The breadth with which the asserted historically derived normative principle is stated therefore may determine the ultimate success or failure of this approach to originalism. Separate from the problem of breadth is the question of historical verification. There may be situations in which descriptivist history sustains an effort to derive a normative principle from the available historical materials. In many such cases, however, this historical approach cannot be sensibly maintained. Three illustrations of constitutional interpretation problems suggest the range of historical responses that might be encountered. These illustrations are offered not to fully prove any particular historical conclusion, but to survey the varying problems of descriptivist and originalist methodologies that may arise. In INS v. Chadha, [FN248] the Court addressed the constitutionality of the so-called one-house veto mechanism in light of the dual article I, section 7 requirements of bicameral passage of legislation and its presentment to the President for approval or veto. [FN249] Not surprisingly, the Court extensively resorted to originalist history to demonstrate that the one-house veto was unconstitutional. This analysis of legal history, however, merits closer attention. Clearly, the historical evidence mustered by the Court did not, and could not, directly and conclusively demonstrate that the one-house veto exceeded the expectations, intent, and original textual meaning of the persons who drafted and ratified the Constitution. The one-house veto is a twentieth-century legislative invention, traceable at least to the New Deal Congresses, a point clearly recognized by the Chadha Court. [FN250] Thus, the history upon which the Court relied was not directly addressed to the one-house veto, but instead more generally to the concepts of presentment and bicameralism that animated the drafting of the relevant provisions in article I. That history, as briefly suggested above, [FN251] indicated that the *1234 drafters of the presentment and bicameralism clauses of article I meant to create a large, but closed-textured, class of final legislative decisions which were subject to the dual requirements of bicameral legislative adoption and presentment to the President. This point was demonstrated by affirmative evidence of their belief in the need for bicameralism [FN252] and of their concerns about the potential evasion of the presentment requirement. [FN253] This finding suggests that the Chadha Court's historical approach to discovering applicable normative concepts was well grounded in available evidence indicating that the drafters of the document had turned their attention to some portion of the normative problem. [FN254] Thus, even if the analogous context in which the Chadha Court applied the framers' statements differed somewhat from the conceptions the drafters of the relevant clauses had for their language, there was reasonable assurance that the normative observations the Court derived from its historical exploration were grounded in historical, rather than contemporary, concers. An example one step removed from the ease with which original understanding was derived and applied in Chadha surfaced in the early twentieth-century case Olmstead v. United States. [FN255] Olmstead raised the issue of whether the fourth and fifth amendments posed any limitations on governmental snooping through electronic surveillance, particularly wiretapping. [FN256] Obviously, electronic surveillance was technologically unknown in the late eighteenth century when these amendments were adopted, just as the one-house veto was utterly unheard of at the time article I was *1235 drafted. While the normative judgments about the presentment clause upon which the Chadha Court relied were affirmatively discussed during the relevant interpretive period in a fashion sufficiently analogous to the contemporary context to suggest some transportability of the concepts, the historical record relevant to the issue posed in Olmstead was far more ambiguous. Two alternative normative values could be derived from the history surrounding the adoption of the fourth amendment--the protection of privacy and the sanctity of property in the home. In the late eighteenth century, when the fourth amendment was drafted, these two values were necessarily intertwined, but technological innovation in the twentieth century separated them. Thus, only privacy is offended by nontrespassory governmental electronic surveillance. Ultimately, whether the protection of personal privacy originally was more or less important to the adoption of the fourth amendment than the protection of property and the home may not be a question susceptible to resolution on purely historical grounds. If this conflict is not demonstrably resolvable on descriptivist historical grounds, it makes little sense to suggest that the question posed in Olmstead can be resolved through originalist methodologies. Nevertheless, the question in Olmstead at least involves normative concepts that were affirmatively probed in some depth by the framers and ratifiers of the fourth amendment. The final illustration involves a case in which the descriptivist historian or the originalist interpreter seeks to ascertain what the framers would have thought about a normative question they never considered. In Brown v. Board of Education, [FN257] the Supreme Court thought it confronted just such a case. Initially, the Court requested briefing on the following: 'What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?' [FN258] After extensive briefing and argument of the historical question, the
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Court concluded that 'these sources . . . are not enough to resolve the problem with which we are faced,' [FN259] in part because the movement toward general free public education 'had not yet taken hold' in the South, the ' e ducation of Negroes was almost nonexistent,' and 'any education of Negroes was forbidden by law in some states.' [FN260] The Court further noted that compulsory school attendance laws, which changed the basic nature of the legal issue, were not generally adopted until after ratification of the fourteenth amendment and were not in force in all states until 1918. [FN261] Thus, according to the Court, the question on which it had asked for briefing in Brown turned out after appropriate investigation to be an issue as to which those who adopted the amendment had given hardly any thought. Any effort to use originalism in this context required that original intent be created from whole cloth, woven from evidence extrinsic to the *1236 deliberations on adoption and ratification of the amendment and derived in a historical context in which the lack of significance of public education differs greatly from the contemptorary legal problem. Based on its understanding of history, the Court properly declined its own invitation to speculate what the drafters and ratifiers of the fourteenth amendment would have thought about a problem they never considered. While not questioning the appropriateness of the Brown Court's response to the historical depiction set forth above, a number of scholars have attacked the accuracy of the Court's history in Brown. Their points are worth considering for the additional light they shed on the methodological assumptions surrounding descriptivist historical accounts of original understanding. These observations are offered here neither for the merits of their historical research nor to undermine the ahistorical nature of the question, set forth above, that the Court thought it confronted in Brown. Historians who oppose the Brown depiction of the history of the fourteenth amendment offer two distinct types of proof. First, some meager affirmative evidence indicates that those who adopted the normative concept of equal protection of the laws considered and rejected the elimination of racial separation in public schools and other public settings. Two important evidentiary observations have been offered in this regard. The Chairman of the House Judiciary Committee defended the bill that would become the Civil Rights Act of 1866, an important historical predicate to the fourteenth amendment, as follows: What do [the] terms ['civil rights and immunities'] mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. . . . Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. [FN262] Furthermore, Representative Bingham, the moving force behind the fourteenth amendment in the House, successfully insisted on the deletion of the 'no discrimination' clause from the 1866 Civil Rights Bill. [FN263] This evidence led Alexander Bickel, who served as Justice Frankfurter's law clerk during the 1952 Term and who initially researched the legislative history, to conclude in the cover letter to Frankfurter accompanying his historical memorandum that 'it is impossible to conclude that the 39th Congress *1237 intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.' [FN264] As direct and affirmative evidence of the normative choices of some of those who adopted the fourteenth amendment, such evidence must be taken seriously in any descriptivist quest for original understanding. Such affirmative evidence either must be accepted or explained in some alternative, historically defensible fashion. [FN265] Second, opponents of the Brown Court's history frequently resort to a common, albeit considerably more questionable, originalist technique when direct, affirmative evidence is either scarce or lacking--inferring original intent from surrounding circumstances rather than from affirmative statements directly addressed to the normative choices involved in the constitutional provision. Two such examples are frequently cited in connection with the meaning of the fourteenth amendment as applied to public school segregation. Notwithstanding protests from abolitionists such as Charles Summer of Massachusetts, Congress since 1864 had permitted the segregation of schools in the District of Columbia. [FN266] Additionaly, some have pointed out that at the time the fourteenth amendment was adopted, racial segregation in schools was either required or permitted in eight northern states and that five northern states directly or implicitly excluded black children entirely from public schools. The argument based on these observations is that ' i f Congress and state legislatures had understood that the amendment was to wipe away the practices, surely there would have been more than a few howls.' [FN267] The methodological assumptions of such negative arguments in support of original understanding, such as arguments derived from congressional and state legislative silence, indicate that this approach constitutes unreliable proof of original understanding for the descriptivist historian. It is far less reliable than affirmative evidence of the normative choices made by those responsible for drafting and adopting the constitutional provision. As reflected by the argument quoted above, such negative efforts to prove original understanding proceed by making assumptions about probable
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legislative behavior. In this instance, the assumption is that there would have been extensive protests and possibly a failure to ratify the fourteenth amendment had the northern states recognized that the segregated patterns of public school attendance would be disrupted. The problem with such assumptions is twofold. First, since this methodology is based on certain predictions about likely behavior in a historical era with a legal and political culture far removed from the contemporary events influencing the researcher, there is a serious danger that the researcher's assumptions are products of contemporary normative assumptions rather than those of the *1238 era being studied. At this point, the researcher's technique has ceased being descriptivist and has become contextualist. As discussed above, contextualism cannot be defended as a legitimate originalist interpretive approach to constitutional history. Second, this type of negative 'proof' of original understanding is speculative at best. When affirmative evidence or original understanding is entirely lacking (which was not the case in Brown), the researcher is really asking what the adopters of the constitutional provision would have thought had they put two independent and potentially conflicting normative observations together. Had there been absolutely no affirmative evidence of the normative choices about school segregation made by those who adopted the fourteenth amendment, the argument would be speculative. The argument assumes that had the adopters of the fourteenth amendment put their normative preference for racial equality reflected in the amendment together with the de facto inequality of the segregated public schools in the District of Columbia and the eight northern states, they would have preferred the retention of the status quo over the full normative implications of the equality principle. Yet, in the total absence of affirmative evidence of the fourteenth amendment's meaning, no historical basis whatsoever exists from which to assume that the adopters of the amendment would have preferred the status quo to the full implementation of an equality principle had they realized the existence of the conflict. There is simply no way through such negative evidence to conclusively disprove the alternative possibility that the adopters of the amendment, if confronted with the inconsistency, would have recognized the normative inconsistency of their behavior and decided to follow the principle of political and legal equality rather than preserve the status quo. This dilemma is not avoided simply by proclaiming that the adopters of the fourteenth amendment did not intend to adopt such a broad equality principle. Such an interpretive argument would be tautological. Thus, the only way to resolve the dilemma historically is to offer affirmative historical evidence of the framers' normative choices. In isolation, negative evidence never can prove a descriptivist historical thesis and, if convincing affirmative proof is available, such negative arguments are simply unnecessary. In short, these negative efforts to prove original understanding from silence add nothing to the descriptivist methodology and pose a very real danger of transposing the search into a contextualist quest for meaning--the very antithesis of the originalist interpretive thesis. Thus, there are situations, such as Chadha, when descriptivist historical research suggests the adoption of certain political values by the adopters of the Constitution in a context sufficiently analogous to clearly warrant transfer of their normative judgments to a situation they had not envisioned. In other contexts, as with electronic surveillance, the record may be more ambiguous, leaving room to debate the legitimacy of the application of the historically discovered values in a context sufficiently divorced from the framers' conception that the effort calls into question whether the norm one attempts to apply is really the product of historical inquiry. Finally, there may be a host of situations, like the Supreme Court's vision of Brown, in which historical inquiry simply will not resolve the question because the situation the drafters envisioned when they adopted the constitutional *1239 language is so radically different from the contemporary context that transporting their norms and values to the contemporary era obviously will warp the meaning of their statements beyond anything that legitimately could be called descriptivist history. In sum, by assuming that a single correct depiction can be re-created by the historian, descriptivism seeks to negate the contextualist assumption that multiple explanations of a history shaped by contemporary values are all equally correct and entitled to respect. By searching for a single correct depiction, however, the descriptivist does not always assume it is discoverable or that one must necessarily be found. Sometimes the historical data simply are unavailable; sometimes they are ambiguous; sometimes, like the Rosetta Stone, they defy explanation (one hopes temporarily); and sometimes the question posed, for various reasons, is simply not susceptible to historical resolution. These illustrations then suggest that, contrary to the claims of originalists and the picture of descriptivists offered by Nelson, descriptivism, and consequently originalism, cannot resolve all interpretive questions. That is not to say, however, as some nonoriginalists suggest, that the methodology is not capable of resolving any interesting questions. As suggested by the Chadha example, originalist history sometimes makes a valuable contribution to the interpretive effort--one that, as discussed below, should be considered outcome-determinative. The point advanced here, however, is that since originalism is properly justified only in using descriptivist, rather than contextualist, history, the methodology cannot always supply a single correct interpretation, as some originalists assert that it must. The second problem with Nelson's critique of descriptivist methodology is his portrayal of the critical test employed in ascertaining the correct historical interpretation--credibility. The core of Nelson's critique of descriptivist history is that
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the credibility decision is ultimately a contemporary, personal, normative judgment of the researcher rather than the neutral, detached, nonnormative decision that the theory requires for methodological purity. Thus, for Nelson, those who purport to engage in descriptivist history are deluding themselves since their own credibility judgments render their history contextualist, rather than descriptivist. While Nelson's critique contains an important kernel of truth, it significantly underplays the nature of the credibility decision and the extent to which researchers can control for the personal, normative elements in their credibility assessments. Indeed, descriptivist historians initially may not recognize their methodology from Nelson's emphasis on credibility. To descriptivists, the concept of historical consistency better captures the essence of the methodology. Descriptivist historians continually measure new depictions and explanations of past reality against the pattern of data already observed--an external evaluative standard. Of course, the smaller or narrower the historical data set observed, the less successfully the test of consistency operates. Thus, descriptivist historians use objective consistency judgments rather than subjective credibility judgments to select correct depictions of past reality. While consistency is probably a far more comfortable concept for the descriptivist than Nelson's credibility judgment, ultimately Nelson is correct that the judgment of consistency turns on questions of credibility. Likewise, *1240 Nelson's critique also contains a kernel of truth in suggesting that the credibility judgment at the core of a descriptivist's consistency analysis is colored by the normative, political, and religious values of the contemporary researcher. This Essay, however, suggests that through reliance on external standards like consistency, descriptivist historians seek to control for the subjective elements of their craft and to arrive at knowledge of past reality as objectively as possible. That this effort to control for subjective elements in historical research is not totally successful does not mean, as Nelson seems to conclude, that all descriptivist history is necessarily subjective and therefore contextualist. The distinction Nelson offers between contextualist and descriptivist history is best understood as a distinction between historians who embrace the contemporary subjective elements of their craft and those historians who recognize the existence of those contemporary subjective elements but attempt to control for and minimize them in their work, thereby seeking the elusive objectively correct portrayal. Returning to the analogy to the physical sciences offered above, physicists who recognize the existence of the induced measurement error postulated by Heisenberg's uncertainty principle have neither despaired at their inability to achieve completely objective truth nor wholeheartedly embraced totally personal visions of the universe. Rather they have used the uncertainty principle to control for measurement error, much as the descriptivist historian uses concepts of consistency to temper the subjective elements of the ultimate credibility decision. [FN268] *1241 C. Speculation on the Roots of Modern Originalism in Late TwentiethCentury Western Thought A debate similar to the dispute over originalist interpretation currently rages in the music world over the use of period instruments. This debate pits contemporary musicians who play works by great eighteenth- and nineteenth-century master composers on modern instruments against those 'original instruments' proponents who believe that composers like Mozart or Haydn simply cannot be understood unless their works are heard on the period instruments with which they were familiar. [FN269] The opponents of the 'original instrument' school argue that classic pieces properly played on twentieth-century instruments render excellent, often better, music than the same pieces played on period instruments. While proponents of the 'original instrument' school might concede that modern orchestras can perform a pleasing and excellent sounding rendition of Haydn or Mozart, *1242 they object that we are not hearing the piece as the composer historically intended it to be heard. The modern rendition may be sonically and technically excellent, but in their minds it is not historically accurate. Just as induced measurement error does not prevent those engaged in physics research from searching out objective, accurate depictions of the universe, so the unavailability of the precise instruments on which Mozart or Haydn composed their works or the instruments of the first orchestras that played them does not prevent proponents of the period instruments from seeking out a rendition of the masters' works that more closely resembles the paradigmatic true original. These 'originalists' recognize that there are subjective choices in deciding which of many available period instruments best represents the type of instrument on which the work was originally heard or intended to be heard. Significantly, the opponents of the 'original instrument' school, unlike contextualist historians, make no claim that the modern rendition of the music is historically correct or valid; they merely claim that they are presenting a contemporary and sonically pleasing rendition of the music. It is curious that in the late twentieth century deterministic movements like the period instrument school of music or the originalist interpretation school of law should emerge and attract vociferous adherents. The deterministic manner in which the Supreme Court has used history and legal rules over the last decade and a half, [FN270] the single-mindedness of certain originalist scholars, [FN271] and even the deterministic nature of jurisprudential trends such as the law and economics movement, [FN272] suggest that something major is afoot, possibly changing the fundamental conception of
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law, and maybe of knowledge as well. Initially, this new determinism appeared to be merely a form of neopositivism, a nostalgic remembrance of the simplicity of law in a prerealist world. Examined in isolation, that argument could be made about the increased legal formalism of the Supreme Court over the past decade and a half and of the originalist movement as a whole. These trends simply may be reactions to the more open-ended instrumentalism and realism of the Warren Court--an effort to brake the engine of judicial management of social change through a preinstrumentalist jurisprudence. Closer examination of deterministic trends in other newer areas of law such as the law and economics movement, or in other disciplines such as the period instrument movement in music, suggests that the intellectual appeal of deterministic, comparatively static models of reality has gained a sudden and unexpected currency. This popularity of determinism followed an intellectual period of acceptance of growth and change brought about by the post-Darwinian evolution in thought and the simultaneous acceptance *1243 of the subjective elements of knowledge, possibly popularized by the focus Freud placed on the ego. The reasons for this rise of neopositivism in late twentieth-century thought are indeed illusive. If, however, trends in the philosophy of knowledge in western thought tend, as suggested above, to follow the lead of models first generated by the natural sciences, the current deterministic and static focus of certain jurisprudential trends and other areas of human thought may echo the advent of the Big Bang Theory of the creation of the universe. [FN273] Since the Big Bang Theory postulates that many natural phenomena and the laws that govern them were created within milliseconds of the Big Bang to which all creation must be traced, [FN274] the theory postulates that deterministic rules governing the structure of all creation were inalterably set in motion by the Big Bang. In many ways, the approach of the originalist school of legal interpretive thought mimics the Big Bang theory, although the significant train of events for such originalist scholars is the much smaller bang created by the events surrounding the drafting and ratification of the United States Constitution. The originalists postulate that these events set in motion inalterable normative principles and constitutional procedures and that any effort to depart from such originalist rules has no more legitimacy than an effort to avoid or alter the basic laws of physics. IV. POLITICAL POLARIZATION AND ORIGINALISM: THE CREATION OF MISLEADING HISTORY The contemporary polarization over originalist interpretation has created a political schism over the value of constitutional history. The more conservative legal scholars recently have advocated originalist interpretation; the more liberal and progressive legal elements have actively embraced nonoriginalist interpretive or deconstructionist methodologies. The nonoriginalism of the legal left therefore has relegated research into originalist constitutional history primarily to legal conservatives. This lack of equal attention to constitutional history by both ends of the political spectrum has left the field open for some originalists of the political right to couch biased, contextualist visions of past reality as correct descriptivist portrayals of the normative visions surrounding the adoption of various clauses, or of the Constitution itself. Three examples highlight this point--the basic conception of the national Union contemplated in the Constitution, the original meaning of the ninth amendment, and the question whether the framers of the fourteenth amendment intended to create the incorporation doctrine. These examples are offered here not to prove the historical theses they advance (a task that would consume considerably more space than available in this Essay), but to suggest the significant costs created by the political polarization over originalist interpretation. *1244 A. The National Union Under the Constitution One illustration of this problem involves the efforts of the originalist right to portray the theory of the Constitution as involving a limited compact between sovereign states in which the states retain all sovereignty not expressly or implicitly delegated to the federal government under the terms of the document--a thesis obviously at odds with the views expressed by Chief Justice Marshall in McCulloch v. Maryland. [FN275] Cursory exploration of the federal-state balance envisioned by the framers at Philadelphia in 1787 suggests that those who wrap themselves in the mantle of originalism and nostalgically yearn for greater constitutional protections of state sovereignty against initiatives of the federal government have their history 180 degrees backward. The Constitutional Convention was not convened at Philadelphia to sanctify the claim of the states to a separate sovereign existence or special constitutional protection from the federal government. Rather, the Convention, whose 200th anniversary we celebrate this year, was convened to fix the problems with our first national constitution, the
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Articles of Confederation. [FN276] According to Madison, the great chronicler of the Philadelphia Convention, chief among those problems was the absurdity of the legal theory upon which the Articles of Confederation rested. As Madison put it in The Federalist No. 42, ' T he articles of confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with compleat sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.' [FN277] The Philadelphia Convention's solution was the enlargement of national power and the curtailment, not protection, of preexisting, pretentious state claims to complete sovereignty. It was precisely those claims to complete state sovereignty that caused the collapse of the Articles of Confederation. Specifically, the Convention chose to abandon a theoretical conception of the Union as a confederation of sovereign states in favor of a vision that create a truly national government with power derived directly from the people rather than delegated by the states. The nationalists controlled the Convention debate. [FN278] They made only those grudging concessions to continued state sovereignty required to secure passage of their proposals under an archaic voting structure derived *1245 in part from the Articles, [FN279] and to prevent the Convention from utterly collapsing as a result of the protests of minority states' rights advocates. It was not until almost a decade after the Convention, during the debates over the Alien and Sedition Acts, that Jefferson and Madison repopularized the compact theory of the Union. The Convention debates reflect the nationalists' domination of the assembly. From May 30 to July 26, 1787, the substantive discussions of the Convention focused, first as a Committee of the Whole and later in plenary session, on proposals presented by Edmund Randolph on May 29 that subsequently came to be known as the Virginia Plan. [FN280] As Randolph explained the next day, his proposals rested in great part on two important propositions: (1) 'that a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation' and (2) 'that a national Government ought to be established' consisting of three branches. [FN281] While some voiced criticism of the first proposition, the debate over the second principle suggested substantial acceptance of Randolph's point that a national government rather than a confederation was needed. [FN282] Charles Pinckney challenged Randolph on whether 'he meant to abolish the State Govern[men]ts, altogether,' [FN283] to which Randolph seemingly replied that the proposals spoke for themselves. [FN284] Others, however, addressed the question more directly. Gouverneur Morris of Massachusetts 'explained the distinction between a federal and national, supreme Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation.' [FN285] George Mason elaborated on this theme, suggesting that 'the present confederation was not only deficient in not providing for coercion & punishment agst. delinquent states . . . therefore that such a Govt. was necessary as could directly operate on individuals.' [FN286] Others were less enthusiastic about the proposals. Roger Sherman of Connecticut, for example, admitted that: [T]he Confederation had not given sufficient power to Congs. *1246 and that additional powers were necessary; particularly that of raising money which he said would involve many other powers. He admitted also that the General & particular jurisdictions ought in no case to be concurrent. He seemed however not be disposed to Make too great inroads on the existing system; intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the States. [FN287] Thus, some of the initial concern with protecting state autonomy stemmed as much from political realism in the recognition of state veto power in the amendment process under the Articles of Confederation [FN288] as from any firm belief in the importance of states as separate sovereign institutions. Three examples highlight the Convention's focus on the national, rather than the federated, nature of the new Union. First, on June 20, 1787. Oliver Ellsworth of Connecticut moved to strike the reference to a national government from the resolution calling for the creation of a supreme government of the Union, preferring instead to retain the structure of the Articles under which the state legislatures rather than conventions of the people approved changes in the document. Randolph agreed to the linguistic change, while noting that 'he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification.' [FN289] Thus, it seems that Randolph did not feel a fight over the label applied to the new Union was warranted so long as it contained the elements of a supreme, national government that he had proposed in his resolutions. By the time of this debate, the Convention had already approved in principle many of the Randolph plan's national features. Second, during debates over the form of representation in both houses of Congress, the nationalists fought hard for the principle of popular rather than state representation. [FN290] Opponents of a strong national government, like Paterson of New Jersey, argued that the charge to the Convention to amend the Articles prevented it from creating a national
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government. Paterson said: [T]he Commissions under which we acted . . . denoted also the sentiments of the States on the subject of our deliberation. The idea of a national Govt. as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves. We have no power to go beyond the federal scheme, and if we had the people are not ripe for any other. [FN291] *1247 To this, nationalists like James Wilson responded, 'We have been told that each State being sovereign, all are equal. . . . If N.J. will not part with her Sovereignty it is vain to talk of Govt.' [FN292] The issue of a representation formula went to the heart of the theory of the new Constitution. Debate on the question was heated and acrimonious. The nationalists' control over the Convention was demonstrated by the fact that the Convention voted two days later by a vote of seven states to three, with Maryland divided, to have both houses of Congress selected not by the states, but 'according to some equitable ratio of representation.' [FN293] Nevertheless, the opposition to this formula was fierce among small state delegations led by New Jersey and Connecticut. Collapse of the Convention was prevented only when Benjamin Franklin, the elder statesman of the group and a free spirit generally regarded as an agnostic, reminded his colleagues that they were sent 'to consult not contend, with each other' and ultimately appealed to the power of prayer. [FN294] During these heated exchanges, Elbridge Gerry denied the very premise of state sovereignty upon which the small state delegations had rested their defense: [W]e never were independent States, were not such now, & never could be even on the principles of the Confederation. The States & the advocates for them were intoxicated with the idea of their sovereignty. He was a member of Congress at the time the federal articles were formed. The injustice of allowing each State an equal vote was long insisted on. He voted for it, but it was agst. his Judgment, and under the pressure of public danger, and the obstinacy of the lesser States. The present confederation he considered as dissolving. The fate of the Union will be decided by the Convention. [FN295] Similarly, James Wilson argued that the states never had a separate sovereign existence; the Union and not the separate states succeeded to the sovereignty of the Crown upon independence. [FN296] Thus, according to Madison's notes: Mr. Wilson could not admit the doctrine that when the Colonies became independent of G. Britain, they became independent also of each other. He read the declaration of Independence, observing thereon that the United Colonies were declared to be free & independent States; and inferring that they were independent, not Individually but Unitedly. [FN297] *1248 Only when the obstinance of the minority small-state delegates threatened the absolute collapse of the Convention did the controlling nationalists ultimately vote, unanimously as it turned out, to accept the principle of equal state representation in the Senate. [FN298] Even then an impasse emerged as to whether voting in the Senate should be by states, as under the Articles, or otherwise. [FN299] A special committee of eleven (one member from each fully represented state delegation) was appointed to discuss the matter. [FN300] Although the special committee recommended voting by states in the Senate and a compromise of granting the House the exclusive right of originating appropriations bills, [FN301] the Convention ultimately rejected equal state voting in favor of a vote for each member of the Senate. [FN302] This decision further distanced the nationalist advocates and the Convention from the compact theory of the Confederation and the destructive state claims to separate sovereignty that had caused such disunity under the Articles. [FN303] In short, state claims to separate sovereignty in national affairs marginally succeeded in the representational formula for the Senate not because they were accepted by the Convention majority in principle, but because political reality suggested that the Convention might collapse without some grudging concession to this minority position. Third, the Convention deliberately ignored the method of amendment provided in the Articles of Confederation. [FN304] The nationalists controlling the Convention deliberately structured the Constitution as one in which the power of the national government emanated from ' w e the People of the United States' [FN305] and in which the people through conventions, rather than the states through their legislatures, breathed life into the draft document through ratification. In McCulloch v. Maryland, [FN306] Chief Justice Marshall relied on these provisions to reject Maryland's assertion of a compact theory of the Constitution. Marshall, however, did not invent the argument. It was fully discussed during the summer of 1787, almost from the start of the Philadelphia Convention. Recall that early in the Convention, Mason had insisted on a national government operating directly on the people of the United States. [FN307] His comments merely echoed the proposals in Randolph's Virginia Plan that required the new Constitution *1249 to be submitted to conventions 'to be expressly chosen by the people.' [FN308] While defenders of the compact theory of the Articles, like Roger Sherman of Connecticut, objected to this proposal as 'unnecessary' and in contravention of the Articles, [FN309] Madison indicated that he thought this provision was essential: The articles of Confedn. themselves were defective in this respect, resting in many of the States on the Legislative sanction only. . . . He suggested also that as far as the articles of Union were to be considered as a Treaty only of a
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particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from (the whole) obligation. For these reasons (as well as others) he thought it indispensable that the new Constitution should be ratified in the most unexceptional form, and by the supreme authority of the people themselves. [FN310] Thus, as the Convention's early deliberation as a committee of the whole neared a close and preparations were made to approve and incorporate the agreed upon principles into a draft constitution, the small state delegates, recognizing that the principle of state sovereignty was in serious jeopardy, attempted to thwart the nationalist dominance of the Convention by proposing an alternative plan of union. [FN311] This plan, offered on June 15 by William Paterson of New Jersey, came to be known as the New Jersey Plan. In contrast to the already agreed upon Virginia Plan, the Paterson proposals merely sought to revise, correct, and enlarge the power of the central government under the Articles of Confederation, leaving the fundamental compact theory of the Union in place. [FN312] While the announcement of the New Jersey Plan delayed final approval of the amended Randolph proposals, it did not thwart the nationalists' continued dominance of the Convention. Alexander Hamilton delivered a long oration on June 18 attacking the New Jersey Plan. The principle thesis of that attack was the unacceptability of confederated government: The members of Congs. being chosen by the States & subject to recall, represent all the local prejudices. . . . The general power whatever be its form if it preserves itself, must swallow up the State powers. [O]otherwise it will be swallowed up by them. It is agst. all principles of a good Government to vest the requisite powers in such a body as [the Continental] Congs. Two Sovereignties can not co-exist within the same limits. Giving powers to [the Continental] Congs. must eventuate in bad Govt. or in no Govt. The plan of N. Jersey therefore will not do. [FN313] *1250 The next day Madison delivered a lengthy speech attacking the New Jersey Plan and Paterson's compact theory of the Union. Madison said: It has been alleged (by Mr. Paterson) that the Confederation having been formed by unanimous consent, could be dissolved by unanimous Consent only Does this doctrine result from the nature of compacts? [D]oes it arise from any particular stipulation in the articles of Confederation? If we consider the federal union as analogous to the fundamental compact by which individuals compose one Society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. [A] breach of the fundamental principles of the compact by a part of the Society would certainly absolve the other part from their obligations to it. . . . He observed that the violations of the federal articles had been numerous & notorious. Among the most notorious was an Act of N. Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congs. [FN314] Madison went on to expressly criticize the New Jersey Plan, rhetorically asking, 'Will it prevent encroachments on the federal authority?' [FN315] Madison therefore was principally concerned with protecting against state encroachments on national authority, rather than vice versa. He specifically noted that ' a tendency to such encroachments has been sufficiently exemplified among ourselves, as well in every other confederated republic antient and Modern.' [FN316] The Convention's rejection of compact theories of the Constitution and its distaste for continued protection of state sovereignty are reflected by its ultimate vote not only to approve the Virginia Plan, from which the first draft of the Constitution was prepared by the Committee of Detail, but also to specifically disapprove the New Jersey Plan. [FN317] Thus, far from protecting the sovereignty of the states, the Constitution seemed bent on diminishing state sovereignty in favor of national power in order 'to prevent encroachments on the federal authority.' [FN318] *1251 The importance of this change in legal theory was not lost, even on opponents of the draft plan. Elbridge Gerry, who often took nationalist positions during the Convention, explained to the Massachusetts House of Representatives why he declined to sign the Constitution. He said, 'The constitution proposed has few if any federal features; but is rather a system of national government. Nevertheless, in many respects, I think it has great merit, and, by proper amendments, may be adapted to the 'exigencies of government, and preservation of liberty.'' [FN319] In short, those today who rely on original understanding to bolster claims of state sovereignty and autonomy simply have their constitutional history backward, as even a preliminary examination of the primary sources reveals. Careful research by those opposed to their position could demonstrate this point even more forcefully. Advocates of a state compact theory of the Constitution rely not on an originalist approach to the Constitution, but on constitutional theories that were substantially rejected in the document and repopularized by the Kentucky and Virginia Resolutions within a decade after it entered into force. Within a month after the close of the Convention, Madison wrote his friend Thomas Jefferson about the legal theory that
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animated the drafting of the Constitution: It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States. A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent & the guilty, the necessity of a military force both obnoxious & dangerous, and in general a scene resembling much more a civil war than the administration of regular Government. Hence was embraced the alternative of a Government which instead of operating on the States, should operate without their intervention on the individuals composing them; and hence the change in the principle and proportion of representation. [FN320] Ironically, Madison, who had been so instrumental in rejecting the compact theory of the Constitution during the Philadelphia Convention, revived it in response to the Alien and Sedition Acts after his political alienation from his former Federalist colleagues. In 1798, Madison drafted the Virginia Resolution, opposing the Alien and Sedition Acts, for the Virginia legislature. In this Resolution, Madison wrote: [T]he several States composing the United States of America, are not united on the principle of unlimited, submission to their general government; but that by compact under the style and title of a Constitution of the United States and of amendments thereto, *1252 they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party . . .. [FN321] While such postadoption constitutional history is certainly relevant to constitutional interpretation, [FN322] it cannot and should not be disguised as originalist history. B. The Original Understanding of the Ninth Amendment A second area in which the legal left recently has relinquished the portrayal of constitutional history primarily to legal conservatives involves a question absolutely critical to the originalists' thesis--the original understanding of the ninth amendment. The ninth amendment provides that '[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' [FN323] If the amendment is construed to mean what it appears to say, it attacks the fundamental tenet of originalist thought that all normative constitutional principles enforced by courts must derive from textual constitutional sources. Thus, originalist thinkers have spent considerable ink attempting to demonstrate that the amendment does not mean what it says. [FN324] The ninth amendment resurfaced in American constitutional law after liberal scholars interested in wide-ranging judicial enforcement of civil rights successfully suggested to the Warren Court that the amendment represented a textual source for open-ended natural rights approaches to enforcing the Constitution. [FN325] When this approach received some support in Griswold v. Connecticut, [FN326] the debate over the ninth amendment heated up, only to be exacerbated later when the Court relied on Griswold and the ninth amendment in its courageous and controversial decision in Roe v. Wade. [FN327] In Griswold, Justice Douglas' opinion for the majority briefly referred to the ninth amendment, [FN328] but Justice Goldberg's concurring opinion gave considerably more attention to and placed substantially more reliance on that provision. Goldberg wrote that 'the Ninth Amendment *1253 shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.' [FN329] Criticism of this view of the ninth amendment takes two forms. First, some like Justice Black in Griswold simply argue that the ninthe amendment does not really mean what it says since allegedly it was originally intended to be read together with the tenth amendment. As Black put this originalist argument, '[this] Amendment was [only] passed . . . to assure the people that the Constitution . . . was intended to limit the Federal Government to the powers granted expressly or by necessary implication.' [FN330] Second, others such as Raoul Berger argue that even if the amendment was seen as a limitation on the federal government, it does not constitute a license for the federal judiciary to enforce nontextual rights contemplated in the amendment. Instead, this argument suggests that judicial enforcement of the ninth amendment evades the very limitations on the federal government the amendment was designed to create. [FN331] Careful descriptivist approaches to the legal history of the ninth amendment by the legal left could suggest that Justice Goldberg offered the correct reading of history, rather than Justice Black or the originalist historians who recently have commented on the question.
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On September 12, 1787, during the waning days of the Constitutional Convention, the delegates briefly considered and voted unanimously to reject a proposal to appointe a committee to expeditiously prepare a bill of rights for the draft document. [FN332] During the Pennsylvania ratification convention, James Wilson offered the typical response to antifederalist concerns about the lack of a bill of rights in the Constitution: [A] bill of rights sis neither an essential nor a necsessary instrument in framing a system of government, since liberty may exist and be as wells secured without it. But it was not only unnecessary, but on this occasion it was found impracticable--for who will be bold enough to undertake to enumerate all the rights of the people?--and when the attempt to enumerate them iss made, it must be *1254 remembered that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted. [FN333] Wilson's comments underscore two important points. First, in true natural law tradition, Wilson did not believe that the rights of the people emanate from authoritative constitutional or statutory documents having the force of law. Rather, the rights of the people are natural rights, existing independent of governmental grant. A bill of rights was troubling because, if the enumeration was not all inclusive, courts might interpret it as limiting natural rights. The rights might continue to exist; they just might not be enforceable against the government if not contained in the enumeration. Second, the reason for this problem was the classic maxim of construction, expressio unius est exclusio alterius. Others echoed this theme. In the South Carolina House of Representatives, C.C. Pinckney said: [W]e had no bill of rights inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated. [FN334] The essential premise of these arguments is the preexisting and independent origin of the natural rights of the people--rights existing regardless of textual grant or protection. This concept, of course, was a product of the natural law jurisprudence then dominant in American legal and political thought. Its roots are traceable to at least 1610, when Lord Coke's dictum in Dr. Bonham's Case [FN335] suggested that 'the common law will . . . controul Acts of Parliament, and sometimes adjudge them to be utterly void' when the statute is 'against common right and reason.' [FN336] These rights are similarly reflected in the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. [FN337] Thus, in accordance with the theories of natural law thinkers, like John Locke, who greatly influenced the conceptual world of late eighteenth-century America, [FN338] natural rights were thought to predate the social compact that creates government and to owe their origin to the very nature of mankind. Governments does not create or grant rights; it is instituted to protect preexisting rights. A government's success or failure at that rask is *1255 a measurement of its legitimacy. [FN339] Jefferson's natural rights theory for independence was also reflected in the roots of popular sovereignty theories that played a critical role in shaping the intellectual underpinnings of the Constitution. [FN340] James Wilson nicely captured the symbiotic relationship between natural rights and popular sovereignty theories when he argued against the need for a bill of rights in the Pennsylvania ratification convention, stating ' t he people of the United States are now in the possession and exercise of their original rights, and while this doctrine is known and operates, we shall have a cure for every disease.' [FN341] From this discussion, it is evident that the First Congress included the ninth amendment in the Bill of Rights to quiet stated concerns that conventional interpretive maxims would be applied to the remainder of the Bill of Rights to diminish the natural rights of the people. Yet the contemporary originalist demand for textual and historical support for judicially enforced, normative constitutional principles employs precisely the maxim of construction those who adopted the ninth amendment sought to avoid. Just as the drafters of the Bill of Rights expected the federal courts to enforce first amendment limitations, they also expected the courts to enforce other natural rights guaranteed by the interpretive caveat of the ninth amendment. As suggested above, [FN342] the early federal courts responded accordingly. For example, Justice Chase suggested in Calder v. Bull [FN343] that the Supreme Court was prepared to enforce nontextual limitations on legislative authority. [FN344] The originalist critique of this view of the ninth amendment anachronistically requires textual or historical proof of the existence and protection of the nontextual rights in question. [FN345] This approach is more contextualist than descriptivist. It exhibits a much later positivist focus on authoritative documents as sources of rights and ignores the theory of natural law and maxims of construction from which the ninth amendment emerged. Again, by deeming legal history to be relatively irrelevant to the interpretive process, the nonoriginalists have left the field relatively clear for conservative originalist historians to advance such misleading, contextualist visions of his highly significant era of
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constitutional history. *1256 C. The Fourteenth Amendment Incorporation Doctrine Another favorite contemporary claim of originalists is that the post-Civil War amendments did not fundamentally alter the federal-state balance established in the original document. Originalists sometimes argue that misinterpretation of the fourteenth amendment has illegitimately foisted centralized national control on state government. [FN346] They claim that the mid-twentieth-century revolution in criminal procedure created by the incorporation doctrine illegitimately prevented the states from exercising their sovereignty in important areas of the control of criminal behavior. [FN347] This classic debate is reflected in the exchanges between Justice Black, a strong proponent of the total incorporation doctrine as a historically intended interpretation of the fourteenth amendment, [FN348] and Professor Charles Fairman, who sought to demonstrate that the adopters of the fourteenth amendment intended no such thing. [FN349] As Professor Nelson has observed, until recently most commentators accepted Fairman's rendition of history and therefore rejected the historical legitimacy of Justice Black's total incorporation doctrine. [FN350] Yet, recent scholarship has shown that the Congressional Globe is replete with statements by Representative Bingham of New York, the principal drafter of the fourteenth amendment, supporting Black's view. Both during and after the debates over the amendment's adoption, Binham indicated his desire to overturn Barron v. Baltimore, [FN351] the case upon which the prior doctrine, holding the Bill of Rights inapplicable to the states, was based. [FN352] These statements reflect Bingham's view that Barron was wrongly *1257 decided. Bingham sought to overturn Barron by providing that the privileges and immunities of United States citizens were protected under the fourteenth amendment. [FN353] He also claimed that the privileges and immunities clause was intended to prevent states from denying United States citizens their rights under the Bill of Rights: I repel the suggestion made here in the heat of debate, that the committee or any of its members who favor this proposition seek in any form to . . . take away from any State any right that belongs to it . . .. The proposition pending before the House is simply a proposition to arm the Congress . . . with the power to enforce the bill of rights as it stands in the Constitution today. It 'hath that extent--no more.' . . . .... Gentlemen admit the force of the provisions in the bill of rights, that the citizens of the United State shall be entitled to all the privileges and immunities of citizens of the United States in the several States, and that no person shall be deprived of life, liberty, or property without due process of law; but they say, 'We are opposed to its enforcement by act of Congress under an amended Constitution, as proposed.' That is the sum and substance of all the argument that we have heard on this subject. Why are gentlemen opposed to the enforcement of the bill of rights, as proposed? Because they aver it would interfere with the reserved rights of the States! Who ever before heard that any State had reserved to itself the right, under the Constitution of the United States, to withhold from any citizen of the United States within is limits, under any pretext whatever, any of the privileges of a citizen of the United States, or to impose upon him, no matter from what State he may have come, any burden contrary to that provision of the Constitution which declares that the citizen shall be entitled in the several States to all the immunities of a citizen of the United States? What does the word immunity in your Constitution mean? Exemption from unequal burdens. Ah! say gentlemen who oppose *1258 this amendment, we are not opposed to equal rights; we are not opposed to the bill of rights that all shall be protected alike in life, liberty, and property; we are only opposed to enforcing it by national authority, even by the consent of the loyal people of all the States. [FN354] During subsequent debate on the 1871 Civil Rights Act, Bingham suggested that he patterned the first section of the fourteenth amendment after the language of article I, section 10 of the Constitution, which placed certain other limits on the power of the states: As [the framers] had said 'no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;' imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment . . .. I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. . . . These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. [FN355] Thus, Bingham explicitly noted that the privilege and immunities of United States citizens subsume at least the
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provisions of the Bill of Rights. In short, far from constituting a twentieth-century invention of activist civil libertarians on the Supreme Court, the incorporation doctrine was precisely envisioned in the mid-nineteenth century by the principal framer of the fourteenth amendment. Indeed, one of its earliest uses was to protect *1259 property interests through the incorporation of the takings clause. [FN356] In light of this evidence, it is worth considering how contemporary, conservative, originalist historians could advance a different vision of the past reality surrounding the adoption of the fourteenth amendment. The answer lies in using Contextualist, negative forms of historical proof--precisely the type of originalist methodological failing that was criticized in the preceding section. For example, if one closely analyzes Fairman's argument, it is apparent that he relies primarily on negative evidence, while minimizing the significance of the direct, affirmative evidence reflected in Bingham's statements. Fairman seeks to demonstrate that the states that ratified the fourteenth amendment were themselves then violating various provisions of the Bill of Rights. From these observations, Fairman argues that had such ratifying states understood the amendment to include an incorporation doctrine, they never would have approved it. [FN357] By failing to pay careful attention to the historical methodology of Fairman's thesis, supporters of Justice Black's thesis, until recently, permitted their opponents to advance a misleading vision of the original understanding of the fourteenth amendment. While the states that ratified the amendment may not have seriously considered the incorporation doctrine implications of its provisions, those who drafted and secured passage of the amendment in Congress apparently intended precisely the result advanced by Justice Black. Thus, in failing to inquire into original intent, nonoriginalists are permitting judicial conservatives to paint a picture of constitutional history and of original understanding that is at best highly misleading and at worst 180 degrees backward. In short, nonoriginalist rhetoric has done a disservice to the academic pursuit of accurate, descriptivist thought on questions of original understanding and constitutional interpretation. By deeming historical inquiry irrelevant, nonoriginalists have allowed the proponents of judicial conservatism to disguise biased, contextualist portrayals as the only posssible depictions of important past events that are crucial to any historically based effort to interpret the Constitution. V. A NONORIGINALIST DEFENSE OF ORIGINALIST CONSTITUTIONAL INTERPRETATION A. Originalism and Constitutional Stability Since originalist interpretive methodologies cannot be defended through originalist historical proof, any importance placed on originalist interpretation must derive from some ahistorical normative judgment. This section will suggest that the important value furthered by adherence to originalist interpretation in certain circumstances is the continuation of constitutional stability. It is precisely the furtherance of this instrumentalist value that permits the nation to celebrate the 200th anniversary of the Constitution. *1260 In 1934 Karl Llewellyn, one of the leading figures in the legal realist movement, wrote a very important article in which he attacked the orthodox theory of constitutional law which suggested that constitutional cases are determined by constitutional text and rules derived from the precedent of cases. [FN358] He proposed instead that the Constitution served as ran important societal institution rather than as a source of outcome-determinative rules. [FN359] According to Llewellyn, the Constitution was an institution because it was 'a set of ways of living and doing.' [FN360] Elsewhere in his article, Llewellyn wrote: A 'written constitution' is a system of unwritten practices in which the Document in question, by virtue of men's attitudes, has a little influence. Where it makes no important difference which way the decision goes, the Text--in the absence of countervailing practice--is an excellent traffic-light. Aside from such cases, any Text of fifty years of age is an Old Man of the Sea. [FN361] In like vein, Max Lerner, then editor of The Nation, wrote an article three years later describing the Constitution as a symbol. [FN362] He pointed out that ' m en have always used symbols in the struggle for power.' [FN363] Tracing over time the symbolic role of the Constitution in shepherding our national destiny in times of crisis and change, Lerner argued that the document has played a symbolic rather than a principled role in the evolutions and revolutions of national power. [FN364] As Lerner put it: From our image of the Constitution as the ultimate wisdom in government, it follows that the men versed in its lore must reach their conclusions not by the paths of ordinary men, but by some mysterious and inspired processes. The judges become, thus, not ordinary men subject to ordinary passsions, but 'discoverers' of final truth, priests in the service of a godhead. [FN365]
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As the tone of their comments suggests, both Lerner and Llewellyn were writing to demystify the grandiose pretensions to rectitude of the 'nine old men' on the New Deal Court--a Court then sitting in judgment over, and condemning to the purgatory of unconstitutionality, major portions of President Franklin Roosevelt's New Deal program. [FN366] The realist attack was launched against an activist, conservative majority of the *1261 Supreme Court that was protecting a political vision of laissez faire capitalism through the use of substantive due process and duel federalism. [FN367] Justice Roberts provided a classic example of this oversimplification of judicial review in United States v. Butler: [FN368] There should be no misunderstanding as to the function of this court in such a case [where a statute is challenged on constitutional grounds]. It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional madnate the judicial branch of the Government has only one duty,--to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends. [FN369] Both realist writers tried to show that members of the Court's conservative majority were making deliberate political choices rather than, as Justice Roberts suggested, merely applying legal rules as they found them. As Llewellyn put it, the realists were seeking to show that 'the king in question has no clothes.' [FN370] In the last half of the twentieth century, judicial conservatives who had applauded the activism of the New Deal Court became uncomfortable with the naked exercises of raw judicial power employed by a federal judiciary that had come to accept the realists' vision of the judicial role. Constitutional interpretation in a postrealist judicial world had become too openended and unconstrained. When federal courts enforced the rights of individuals, they often threatened legislative majorities. In so doing, they challenged the deeply felt contemporary sense that such questions were better resolved by the process of majoritarian democracy in state legislatures and in Congress rather than by nonelected federal judges holding life tenure. These critics recently have taken refuge in the mantle of original understanding. They prefer using external rules rather than the naked will of the Court to decide constitutional cases. The external standard they champion is their own alleged perceptions of the intent of a group of *1262 framers long since dead and buried, an approach to constitutional interpretation that Llewellyn and other realists sought to inter fifty years ago as 'an Old Man of the Sea.' [FN371] Thus, the originalists appear misguided in demanding that constitutional history answer many questions that simply are not susceptible to historical analysis. Yet, nonoriginalists also have been mistaken. By ignoring the cultural significance of our written Constitution and the quite sizable body of available primary historical data that can be used to assess how and why the framers used the language found in that document, nonoriginalists have excessively disparaged the interpretive signifcance of constitutional history. The core idea necessary to reconcile pragmatic postrealist thought with the significance of original understanding is that the instrumentalist value of constitutional stability has cultural, political, social, and economic importance. Such stability is not merely a historical observation, it is also an important ongoing public policy objective that deserves at least equal attention with other normative values in nonoriginalists' instrumentalist analyses of legal problems. [FN372] This instrumentalist value in constitutional stability is not a concern with preserving the status quo; rather, it ensures that contemporary society respects the legitimacy of the constitutionally provided procedures for resolving disputes about the meaning and enforcement of its fundamental charter. James Madison clearly recognized the instrumentalist importance of constitutional stability in The Federalist No. 49. [FN373] In that essay, Madison responded to suggestions by Thomas Jefferson, his friend and fellow Virginian, that resolution of constitutional crises and disputes between coordinate branches of government be left entirely to the people through democratic conventions or, possibly, revolutionary processes to regularly renew the democratic mandate of the people. [FN374] While conceding that there is 'great force in this reasoning' since 'it seems strictly consonant to the republican theory, to recur to the same original authority of the people who are the fountainhead of all governmental power ,' Madison nevertheless rejected Jefferson's suggestion. [FN375] Madison argued that such repeated resort to the people to resolve constitutional impasses would 'carry an implication of some defect in the government, and that frequent appeals would in great measure deprive the government of that veneration, which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.' [FN376] Similarly,
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Madison objected that frequent public rethinking of the constitutional social contract ran ' t he danger of disturbing public tranquility by interesting *1263 too strongly the public passions.' [FN377] He noted that while there had been success with the constitutional 'revisions of our established forms of government, and which,' according to Madison, 'does so much honour to the virtue and intelligence of the people of America, it must be confessed, that the experiments are of too ticklish a nature to be unnecessarily multiplied.' [FN378] Thus, for Madison, there was a continuing tension to be worked out amongst the coordinate branches of government between the important demands of constitutional stability and tranquility, and the evolutionary need to keep the government's mandate fresh and in step with the contemporary needs and demands of the governed. Resort to original understanding as an interpretive principle does not, except in the most metaphysical fashion, legitimate constitutional adjudication by keeping fresh the constitutional mandate of the government. The 'We the People' referred to in the preamble of the Constitution are now long since dead, and no one has clearly explained in a fashion consistent with democratic theory why their preferences, even if demonstrably discoverable through appropriate historical inquiry, should govern the world of those living 200 years after the culmination of their creative acts. On the other hand, resort to original understanding as an interpretive principle provides the requisite backbone of governmental stability and tranquility that Madison thought was necessary for societal growth and development. We are a people schooled in the traditions of western civilization. In that tradition, written documents ranging from the Biblical texts, the Mayflower Compact, and the Declaration of Independence to contracts, wills, and statutes control and govern our daily lives. The suggestion that the intent of the makers of those documents is either not knowable or not relevant to the process of interpretation does not sit well with our societal norms, expectations, or traditions. Thus, whatever the actual methodological difficulties involved in ascertaining original understanding--and they are considerable--the denial of the interpretive significance of the undertaking is bound to be viewed skeptically by the society and to constitute a destabilizing force. If, as Madison suggested, the Constitution was designed to establish public stability and tranquility about fundamental questions of governance, the extreme nonoriginalist claim that original understanding is absolutely irrelevant must be rejected as soundly as the equally extreme originalist claim that only resort to constitutional text and history justify constitutional interpretation. The noted modern historian, Henry Steele Commager, nicely summarized this relationship as follows: [T]he search for really authoritative history is doomed to disappointment . . .. Yet it does not at all follow that exploration of the historical background of important constitutional doctrines is futile. Here we can take consolation from Justice Holmes who, though he disparaged 'ingenious research,' remarked later in life that 'historical continuity with the past is not a duty, it is only a *1264 necessity.' [FN379] Chief Justice Marshall described the Constitution as 'a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.' [FN380] The document has served this role precisely because, as Madison noted, it combines the flexibility to permit social, economic, and political progress with the structural backbone of public tranquaility necessary for constitutional stability. [FN381] Resort to the framers' original understanding simply cannot answer all interpretive questions that arise in the enforcement of the Constitution. Original understanding can answer some of these questions, however. The refusal of some to acknowledge that fact ultimately threatens the stability of the Constitution either as a symbol or as an important societal institution. Thus, Marshall's famous maxim 'we must never forget that it is a constitution we are expounding,' is best understood as having a two-edged meaning-- facilitating interpretive evolution and growth while retaining political stability by paying appropriate homage to constitutional language, originalist history, and postadoption constitutional evolution. B. Originalism and Constitutional Growth: A Methodological Synthesis of Originalist and Nonoriginalist Thought 1. Introduction: Extraconstitutional and Contraconstitutional Interpretation The contemporary polarization of originalist and nonoriginalist interpretive visions of the Constitution makes the task of bridging the gap between them more difficult. So long as the Constitution is perceived either as meaning exclusively what it meant when drafted and ratified or as having no relationship whatsoever to its original understanding, no amount of logic suggesting the appropriateness of an intermediate vision of the document is likely to be readily accepted. Nevertheless, for many of the reasons offered above, an intermediate vision is necessary. This section will attempt such a
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methodological reconciliation of the nonoriginalist principle of constitutional evolution with the important originalist value of constitutional stability. In reconciling these two principles, it is useful to resort to Michael Perry's dichotomy between 'extraconstitutional' and 'contraconstitutional' interpretations of the document. [FN382] As used here, extraconstitutional interpretation refers to a particular type of normative, ahistoric constitutional interpretation. Extraconstitutional interpretation adds normative principles or powers to the document that were neither envisioned by its *1265 adoptors nor contrary to their intentions, as demonstrated by the language and structure of the document as originally understood or by affirmative historical proofs of the original meaning of that language. By contrast, contraconstitutional interpretation refers to ahistorical interpretations that are inconsistent with the constitutional language as originally understood or with affirmative historical demonstrations of the original meaning of that language. The distinction between extraconstitutional and contraconstitutional interpretation marks the boundary between evolutionary and revolutionary constitutional change. The core of the thesis advanced here is that while extraconstitutional interpretation generally constitutes a legitimate interpretive methodology, facilitating the flexible enforcement and growth of the document, contraconstitutional interpretation is illegitimate because it tends to undermine public confidence in constitutional governance and the instrumentalist value of constitutional stability. Extraconstitutional interpretation involves the construing court using whatever interpretive means are appropriate to breathe precisely the same evolutionary interpretive life into the Constitution that Madison envisioned in The Federalist No. 49. Thus, extraconstitutional interpretation has historic legitimacy and is widely accepted outside the originalist school of interpretation. By contrast, contraconstitutional interpretation arrives at a construction that conflicts with the originally understood meaning of the document. If a written constitution is to be treated seriously for its value in fostering constitutional stability, a construction that is inconsistent with the text as originally understood surely cannot be accepted. Furthermore, if, as argued above, constitutional stability rests in great part on public perceptions of the courts' interpretive fidelity to the constitutional text and the values it originally embraced, then acceptance of a contraconstitutional interpretation is a destabilizing force in the constitutional framework--a disservice to the cause of constitutional government regardless of the normative values used to justify such an interpretation. This is not to say that the Constitution never can come to mean something inconsistent with what it originally meant. Rather, the argument suggests that the appropriate vehicle for this type of constitutional change is constitutional amendment rather than contraconstitutional interpretation by the courts. Revolutionary breaks with the Constitution's fundamental normative traditions ought to be tested by the standards of extraordinary agreement prescribed by the amendment process of the Constitution. [FN383] The nation has used this mode of constitutional change *1266 throughout its history both on large issues such as state sovereign immunity and slavery, and, more recently, on comparatively lesser issues such as prohibition and the eighteen-year-old vote in state elections. [FN384] 2. A Dynamic Interpretive Approach to Original Understanding To reconcile originalist and nonoriginalist thought, and simultaneously accommodate the dual needs of constitutional evolution andconstitutional stability, analysis of any question of constitutional interpretation must involve considerably more than simply asking what is or was meant by the affected provision. An appropriate reconciliation must involve a structured analysis that gives controlling force to any demonstrated original understanding of a clause, while recognizing that in many, perhaps most, situations, affirmative demonstrations of original understanding are elusive at best. To arrive at such an accommodation, a number of structured interpretive questions must be asked in a precise order. The interpretive approach will vary depending on the answer to each question. This section presents that structured analysis, both in narrative format, to explain and define the analysis, and as a logical flowchart, set forth in Figure 1. Any practical interpretive effort to treat the original understanding of the Constitution seriously must start by asking whether the interpretive question posed is susceptible to historical analysis. For example, efforts to demonstrate historically that the military powers of Congress originally included the raising and supporting of an air force, or that the fourth amendment protections as originally conceived prohibited nontrespassory electronic surveillance, obviously are misguided from the start. Thus, the first question that always must be asked is whether the issue posed is susceptible to original understanding historical analyses. [FN385] If this question is answered in the negative, then nonoriginalist, extraconstitutional interpretation obviously poses no threat to constitutional stability and allows the federal courts to perform their intended role of facilitating the growth and evolution of the ongoing constitutional structure. If, on the other hand, this question is answered affirmatively, then the originalist inquiry has merely begun. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
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*1268 Even when an interpretive question is susceptible to historical inquiry, lack of affirmative evidence may prevent determination of the original meaning of a constitutional clause. Affirmative evidence may take many forms, including textual relationship, affirmative discussions in debates, and structural relationships to other, more certain, constitutional provisions. While many provisions of the Constitution were hotly debated, not every clause received such attention at the Philadelphia Convention, in the state ratification conventions, or in the published broadsides, pamphlets, and newspaper essays that surrounded the ratification controversy. Thus, the next logical question that must be asked by a practical interpreter interested in ascertaining original understanding is whether affirmative historical evidence is available from which to derive an original understanding. [FN386] Without historically demonstrated affirmative discussion of the meaning of a particular clause at issue, historically demonstrated definitive connotation of the language as used during drafting and ratification, or other affirmative indications of meaning in the text or structure of the document, the most a historian can do is speculate from other affirmative or negative evidence regarding what the adopters might have thought about an issue to which they gave no thought. Because of the contextualist perspective of any such undertaking and the likelihood that contemporary normative values will dominate the inquiry, there is no logical reason in the absence of affirmative evidence of original understanding to prefer this subjectively derived, so-called historical meaning to one derived through ahistorical, nonoriginalist methods of constitutional interpretation. No harm is done to the cause of constitutional stability by rejecting a highly personalized, debatable vision of constitutional meaning. If, on the other hand, affirmative evidence exists from which an original understanding might be objectively derived, the historical search for meaning must continue. At this stage of the analysis important methodological concerns emerge. Often the originalist, descriptivist historian finds that the framers did not consider the precise question at issue, but considered other sufficiently parallel normative questions from which inferences can be drawn about the issue at hand. This situation raises the methodological problem of what level of abstraction one should employ to read the historical record. [FN387] Obviously, an interpreter might read the adopters' normative judgments on a continuum of generality ranging from very *1269 narrow normative judgments to very nebulous general principles from prior debates. The narrower the level of generalization, the more the researcher is suggesting that affirmative evidence does exist from which an original understanding can be gleaned. The broader the researcher must read the record to discover an applicable normative principle, the more likely that principle is the product of the researcher's contemporary normative preferences rather than of the available historical data. Thus, broad, general readings of the data should be entitled to less originalist weight than precise, narrow, analogous historical evidence. At some point, the level of generality employed by the historical investigator becomes so broad that the researcher is really saying that there is no affirmative, historical material from which one could derive a descriptivist portrayal of original understanding. The next logical, and indeed, the most critical, question is whether the available historical evidence yields a demonstrable descriptivist portrayal of original understanding. [FN388] While seemingly quite simple, this question is the one most fraught with methodological pitfalls and potential disagreements. Readily available primary historical materials may not upon close examination yield a demonstrable descriptivist vision of original understanding for many reasons. First, there often are conflicts among different speakers in debates over either the meaning of a provision or the appropriate outcome of a constitutional question. Simultaneously, the record may contain insufficient data from which to conclude which view seemed to prevail in the group deliberations. In any such case of historical evidentiary equipoise, any selection by the interpreter from among competing portrayals of the past necessarily will be subjective and contextualist rather than descriptivist. As already discussed, [FN389] there is no valid reason to prefer a contextualist vision of original meaning to one derived from nonoriginalist methodological approaches. Second, the quest for original understanding does not involve a single methodology. Rather, as already suggested, [FN390] varying originalist interpretive devices are employed, including originalist textualism, intentionalism, and structural analysis. When these various methodologies all point to the same original understanding, deriving original meaning poses few methodological problems. When, however, the results of these approaches all point to varied potential original meanings of the clause and fail to yield a discernible descriptivist pattern of data consistency from which to select among the competing choices, any selection must be based on contemporary normative preferences rather than on the historical data. Such contextualist history, while enlightening, is entitled to no greater respect in the interpretive process than meanings arrived at by nonoriginalist methodologies. Third, just as there were disagreements during the Jay Treaty ratification debates over the appropriate interpretive constituency whose *1270 statements ought to be regarded as authoritative, [FN391] such disagreements continue to plague originalist research. Originalists interpreting the Constitution consult the views of at least four interpretive communities--the delegates at the Philadelphia Convention, the delegates at the state ratification conventions, 'the People' in the late eighteenth century, and the First Congress that implemented the Constitution. Interpreting constitutional
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amendments generally will involve addressing the views of at least two relevant interpretive communities--the Congress that proposed and debated the amendment, and the state legislatures that debated ratification. [FN392] Sometimes the historical records derived from these interpretive communities may partially conflict. Different researchers, of course, will give different weight to viewpoints derived from these different interpretive constituencies, all of which are historically based and may be considered originalist in some sense. [FN393] If the collective weight of the evidence or some principle of sound interpretive methodology does not point toward accepting the views of one interpretive constituency over another, it may be difficult to come conclusively to a single correct original understanding. Fourth, different descriptivist historical researchers reading the same record and applying the same methodologies occasionally may come to different conclusions about original meaning. [FN394] If no clear basis exists to prefer one portrayal of original understanding over the other, either because of equipoise in the weight of scholarly opinion or because of *1271 defects in the descriptivist methodologies of one of the advanced positions, again the choice cannot be made on the basis of historical criteria. While this portrayal suggests a number of methodological failings of descriptivist approaches to discerning original understanding, these failings should not be overstated. In many instances, and on many important interpretive questions, a close reading of the historical record does yield a clear sense of original meaning. For example, as argued above, [FN395] ample historical evidence can be mustered from which to conclude that the Chadha Court was correct in suggesting that the framers regarded as very important both the bicameral passage of bills and resolutions and their presentment to the President for approval or disapproval. Furthermore, the evidence is also quite clear that the framers meant the class of legislative behavior they were describing to be closed textured and all inclusive, that is, not subject to later interpretive curtailment. This observation raises the next logical question that must be asked in all interpretive inquiries--whether the adopters of a particular constitutional clause meant their original understanding to be closed textured or to be subject to later interpretive expansion and alteration. [FN396] Obviously, rigid application of an original understanding, in the face of a demonstrated historical record indicating that the adopters of a constitutional provision meant their text to be construed in an open-textured, evolutionary fashion, elevates the originalist form of interpretation over its substance and must be avoided. Constitutional stability is not furthered by ignoring a demonstrated history of open-textured intent. The preliminary analysis of the ninth amendment's history offered above demonstrates this point. Rigid adherence to original understanding in such circumstances constitutes an ahistorical interpretive methodology that is as constitutionally destabilizing as any other nonoriginalist, contraconstitutional interpretation. Exclusive interpretive reliance on original understanding of a constitutional provision, then, is historically justified only when the adopters meant the provision in question to be enforced solely in a fashion that comported with their original meaning, which was not intended to change over time. From this dynamic analytical inquiry, the interpreter sometimes must conclude that the only legitimate interpretation of the Constitution is the one originally intended by the adopters of the provision in question. Yet, this conclusion is compelled only when the question is susceptible to historical analysis and available affirmative historical evidence yields a single demonstrable interpretation, derived from descriptivist historical techniques, that seems to have been advanced by the relevant framers as a closed-textured meaning. When these conditions are satisfied, any interpretive departure from the original understanding would constitute a contraconstitutional interpretation rather than merely an evolutionary *1272 addition to the document reflected in extraconstitutional interpretation. If constitutional stability is an important instrumentalist value, as Madison suggested, then the destabilizing tendencies of contraconstitutional interpretation cannot be tolerated. If a historically derived original understanding is at odds with contemporary normative preferences, the appropriate response is to test extraordinary support for those perceived value preferences through the constitutional amendment process rather than to avoid critical examination of popular normative preferences through contraconstitutional interpretation. [FN397] *1273 In this analysis, however, nonoriginalist interpretive methodologies are accommodated as long as they yield extraconstitutional rather than contraconstitutional interpretations. Thus, as reflected by Figure 1, if the historically based interpreter concludes that the interpretive question posed is not susceptible to historical inqury, that sufficient affirmative historical data from which to resolve the interpretive question are lacking, that the data suggest no single definitive interpretation of the Constitution that resolves the question, or, finally, that those who adopted the constitutional provision at issue meant it to have an open-textured meaning that would evolve as it was enforced and interpreted, then nonoriginalist interpretive methodologies legitimately can be employed to interpret the document. This Essay takes no position on the relative merits or priorities of any of these nonoriginalist interpretive theories. It only suggests that such nonoriginalist interpretive theories legitimately should be invoked only to supply extraconstitutional, rather than
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contraconstitutional, interpretations of the document. Illustrations of such nonoriginalist interpretive strategies include the following: theories based on nonoriginalist, plain-meaning approaches to the document; [FN398] ahistorical approaches based on structural relationships within the document; [FN399] representation-reinforcing theories derived from the famous Carolene Products footnote; [FN400] analyses that rely on perceived contemporary value preferences, [FN401] postadoption constitutional practice, and history; [FN402] theories based on the importance of finality in *1274 decided constitutional precedents; [FN403] and even Professor Thayer's famous rule of reason. [FN404] Parenthetically, it should be emphasized that the use of postadoption constitutional practice to supply interpretive meaning does not involve an originalist interpretive approach. It seeks meaning not in the document as understood when adopted, but in the later events indicating how the document was subsequently interpreted and implemented. [FN405] The analysis advanced here suggests that long-standing constitutional practices can inform the interpretation of the document in the absence of convincing demonstrations of original meaning but never can legitimately displace the demonstrated original meaning of the document in the absence of constitutional amendment. Thus, arguments sometimes offered by members of the Supreme Court that it is too late in our constitutional history to advance originalist arguments in support of a particular interpretation because of intervening, long-standing, and inconsistent constitutional practice [FN406] are misguided under the analysis suggested here. *1275 While the failure of historical inquiry to demonstrate a single correct original meaning of the Constitution on a particular interpretive question justifies the invocation of nonoriginalist interpretive strategies, it does not automatically negate the significance of the explored originalist history to the nonoriginalist interpretive inquiry. Rather, in some cases, depending on the reasons for the failure of the originalist quest, the originalist history might limit the interpretive choices generated by the nonoriginalist methodologies. In some instances interpretive choices that are plausible from a nonoriginalist perspective may prove to be inconsistent with a range of historically derived potential interpretations of the Constitution. While this analysis suggests the legitimacy of nonoriginalist methods that produce extraconstitutional evolutionary changes in the document, it posits that the instrumentalist value of constitutional stability precludes contraconstitutional interpretations of the document. Thus, the further down the left side of Figure 1 the originalist inquiry takes the interpreter, the more constrained are the legitimate choices that nonoriginalist methods might yield. When the interpretive question either is not susceptible to interpretive analysis or is one on which absolutely no historical evidence is available, the nonoriginalist has a relatively free hand since a contraconstitutional interpretation is unimaginable. On the other hand, consider a situation in which ample affirmative historical evidence suggests that a particular clause in the Constitution meant either A or B (assuming that A and B are alternative and not inconsistent meanings) and no more (i.e., that it was designed by its adopters to be closed textured). Assume further that it is impossible to resolve from the evidence whether the clause originally meant A or B. In such a situation it is perfectly legitimate to use nonoriginalist interpretive techniquest to resolve the question of whether the clause today should be construed to mean either A or B. It is not legitimate, however, to invoke nonoriginalist techniquest to interpret the clause as meaning either C or NOT B. By contrast, if the historical inquiry had suggested that the clause was meant to be open textured, nonoriginalist interpretive techniques could influence the meaning of the clause by adding C, but could not arrive at a conclusion, inconsistent with the demonstrated history, that the clause meant NOT B. To further vary the hypothetical, if A and B were, indeed, inconsistent rather than alternative interpretations, greater liberty must be afforded the nonoriginalist interpreter to adopt either A or B, i.e., either A or NOT A, since the choice of either A or B necessarily will be logically inconsistent with the other demonstrated plausible original meaning. In this sense, the instrumentalist value of constitutional stability protected by the interpretive techniques of originalism shapes the legitimacy of both originalist and nonoriginalist methods of interpretation. Accepting the importance of original understanding to the interpretive process obviously structures any constitutional intepretive debate. Yet, it does not by itself resolve all interpretive questions. Reasonable historians and judges, for example, may disagree about the reading to give historical data, even applying the descriptivist approach advanced here. Nevertheless, by structuring the inquiry, this analysis at least would focus the debate on the relevant reading of the history, rather than having two interpreters proceed from different methodologies and discuss the issue at *1276 cross purposes with one another, as often occurs today with originalists and nonoriginalists. 3. Precedent and Original Understanding This analytical synthesis of originalist and nonoriginalist interpretive thought raises important questions about the relationship of originalist interpretive techniques to the normal rules of precedent reflected in the doctrine of stare decisis. [FN407] Some commentators have criticized various historically and nonhistorically based methods of constitutional interpretation for failing to take due account of stare decisis. [FN408] The thesis advanced here is that an interpretive constitutional precedent should be treated as final and authoritative when the text of the opinion reflects a reasonable
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effort to explore and accommodate the interpretive process with the descriptivist, originalist historical analysis offered above. When the Court's opinion reflects such a reasoned effort, the case should be treated as resolving the legal question even though a reasonable historical argument might be made that the court had its history wrong. [FN409] In short, this section applies the dual principles of finality and predictability protected by stare *1277 decisis to the historical inquiry made by the court. On the other hand, when the opinions reflecting a precedent indicate that the Court took no account of the original understanding of the constitutional provision, that authority should be entitled to comparatively less weight as constitutional precedent. A reviewing court therefore should be more willing to overturn precedent upon a new and compelling showing of original understanding when the prior authority wholly ignored, as opposed to misunderstood, the original understanding of the Constitution, or when the methodology applied radically departed from the descriptivist techniques advanced above. Out of due regard for the principles of finality and predictability furthered by the docrine of stare decisis, any constitutional precedent rendered in utter disregard of originalist history nevertheless should remain binding authority until a convincing originalist case for overturning it is made in actual litigation. The original materials on which an interpreter of the Constitution could base historical research into the original meaning of the document were not fully published until 1840, [FN410] and were not well indexed or widely and simultaneously available until well into the twentieth century. [FN411] Thus, the federal courts developed a considerable portion of our constitutional precedent during the nineteenth century in relative ignorance of historical facts about the document now available to the dedicated historian. Probably because of the early availability and influence of The Federalist, [FN412] many of the constitutional constructions developed during this formative period, particularly those of the Marshall Court, hew quite closely to the now available historical record. [FN413] Nevertheless, situations occasionally arose, particularly during the nineteenth century, when the Court relied solely on the text to arrive at interpretations that are demonstrably at odds with the original understanding of the document. [FN414] To the extent that historians and advocates now can highlight the disjunction of that history with contemporary doctrinal interpretations, both public and professional confidence in the constitutional interpretive process employed by the judiciary may be undermined. As a result, an erosion of the instrumentalist value of constitutional stability also may occur. Those committed to the dual values of finality and predictability ostensibly served by the rules of precedent might argue that redetermination *1278 of the meaning of a constitutional clause merely because the court that established the precedent paid no heed to originalist hsitory is more destabilizing than continuing to enforce a contraconstitutional interpretation. Under this argument, the redetermination of legal precedent may lead to sharp breaks with legal traditions that diminish the predictability of constitutional interpretation. This argument highlights the question of precisely what is protected by the instrumentalist value of constitutional stability. Does taking constitutional stability seriously as an instrumentalist value mean protecting the de facto status quo, whatever it may be, or does it involve protecting the societal confidence in the procedural structure provided in the Constitution for resolving disputes about its meaning and enforcement? As used by Madison in The Federalist No. 49 [FN415] and by the author here, the instrumentalist concern with constitutional stability involves the assurance of continuing societal confidence in the constitutional procedures for normative resolution of disputes about the nature of government, not the preservation of the status quo. Under this definition, public recognition that the doctrinal status quo is inconsistent with the original understanding of the Constitution can be constitutionally destabilizing, a danger that is multiplied with the number of such inconsistencies that can be cited. Comparatively, the concern expressed by this approach is greater for procedural constitutional stability than for constitutional predictability. On this view, a decision overturning a precedent that was rendered with utter disregard for and in patent contravention of the original historical record, while undermining somewhat the finality and predictability of constitutional doctrine, nevertheless furthers the instrumentalist value of assuring constitutional stability, a more important competing value. VI. CONCLUSION The polarized interpretive debate currently waged between originalist and nonoriginalist camps during the bicentennial of the nation's Constitution is neither a healthy nor a necessary interpretive development. It has resulted in excessive interpretive claims on both sides and has relegated research into constitutional history principally to one side of the legal and political spectrum. Furthermore, the debate threatens to undermine the perceived legitimacy of judicial review and with it an important cornerstone of constitutional stability. This Essay suggests that both originalist and nonoriginalist interpretive approaches are perfectly legitimate when properly employed. It also suggests that the current tension between originalist and nonoriginalist interpreters can be reconciled. To that end, this Essay proposes a structured, dynamic analysis suggesting situations in which originalist
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interpretation is required and other situations in which nonoriginalist interpretation is legitimate. [FN416] At the core of that analysis is the suggestion that the framers of the document intended to accommodate both flexible growth *1279 and evolution of the constitutional fabric, while maintaining sufficient constitutional stability to facilitate ordered change. [FN417] Extraconstitutional interpretation facilitates evolution at a minimal cost to constitutional stability. On the other hand, interpretations of the document that are fundamentally at odds with the historic meaning of those who drafted it--contraconstitutional interpretations--ultimately undermine societal faith in constitutional governance and judicial review, suggesting that in appropriate cases the demonstrated original understandings of the Constitution must be controlling. Only by applying a dynamic analysis that recognizes and accommodates the importance of each interpretive vision can the dual purposes of the Constitution to promote societal growth and stability be furthered, while reducing the level of dysfunctional political friction about the legitimacy of judicial enforcement of the Constitution. [FNa] Professor of Law, University of Iowa. B.A. 1968, University of Michigan; J.D. 1971, University of Chicago. This Essay benefited greatly from the contributions of Randall Bezanson, Herbert Hovenkamp, Arthur Bonfield, Sheldon Kurtz, and Nell Jessup Newton, who reviewed and commented on earlier versions of this manuscript. The author also gratefully acknowledges the contributions of his research assistants, Mark Hostager and Helen Adams, to the research on this Essay. The views expressed in this Essay, however, are solely those of the author. This Essay elaborates upon remarks presented at the Symposium on the Bicentennial of the United States Constitution on the occasion of the dedication of the Willard L. Boyd Law Building of the University of Iowa College of Law on Oct. 17, 1986. [FN1]. Letter from James Madison to Henry Lee (June 25, 1824), quoted in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 464 (M. Farrand ed. 1966). [FN2]. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (Marshall, C.J.). [FN3]. In its modern phase, this debate over originalist interpretation stretches back at least three decades. Aside from judical commentaries on the question, the debate has been conducted in numerous books and law review articles. For a collection of books dealing in part with the significance of constitutional history to constitutional interpretation, see generally R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); P. EIDELBERG, THE PHILOSOPHY OF THE AMERICAN CONSTITUTION: A REINTERPRETATION OF THE INTENTIONS OF THE FOUNDING FATHERS (1968); C. MILLER, THE SUPREME COURT AND THE USES OF HISTORY (1969); K. MOTT, THE SUPREME COURT: MYTH AND REALITY (1978); W. NELSON & J. REID, THE LITERATURE OF AMERICAN LEGAL HISTORY (1985); L. TRIBE, GOD SAVE THIS HONORABLE COURT (1985). For articles over the past three decades reflecting debate over the significance of original understanding in constitutional interpretation, see Alfange, On Judicial Policymaking and Constitutional Change: Another Look at the 'Original Intent' Theory of Constitutional Interpretation, 5 HASTINGS CONST. L.Q. 603 (1978); Bennett, The Mission of Moral Reasoning in Constitutional Law, 58 S. CAL. L. REV. 647 (1985); Berger, Mark Tushnet's Critique of Interpretivism, 51 GEO. WASH. L. REV. 532 (1983); Berger, Paul Brest's Brief for an Imperial Judiciary, 40 MD. L. REV. 1 (1981); Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955); Bork, Styles in Constitutional Theory, 26 S. TEX. L.J 383 (1985); Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REV. 204 (1980); Brown, Reinterpretation of the Formation of the American Constitution, 42 B.U.L. REV. 412 (1962); Carter, Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle, 94 YALE L.J. 821 (1985); Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and Judicial Review, 62 TEX. L. REV. 1207 (1984); Cottrol, Static History and Brittle Jurisprudence: Raoul Berger and the Problem of Constitutional Methodology, 26 B.C.L. REV. 353 (1985); Dewey, James Madison Helps Clio Interpret the Constitution, 15 AM. J. LEGAL HIST. 38 (1971); Gaffney, History and Legal Interpretation: The Early Distortion of the Fourteenth Amendment by the Gilded Age Court, 25 CATH. U.L. REV. 207 (1976); Grano, Judicial Review and a Written Constitution in a Democratic Society, 28 WAYNE L. REV. 1 (1981); Grey, The Constitution as Scripture, 37 STAN. L. REV. 1 (1984); Hall, 'Think Things, Not Words:' Judicial Review in American Constitutional History, 35 U. FLA. L. REV. 281 (1983); Jacobsohn, E.T.: The Extra-Textual in Constitutional Interpretation, 1 CONST. COMMENTARY 21 (1984); Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119 (1965); Leedes, An Acceptable Emaning of the Constitution, 61 WASH. U.L.Q. 1003 (1984); Maltz, The Failure of Attacks on Constitutional Originalism, 4 CONST. COMMENTARY 43-57 (1987); Maltz, Some New Thoughts on an Old Problem--The Role of the Intent of the Framers in Constitutional Theory, 63 B.U.L. REV. 811 (1983); Merrill, Constitutional Interpretation: The Obligation to Respect the Text, 25 OKLA. L. REV. 530 (1972); Miller, An Inquiry into the Relevance of the Intentions of the Founding Fathers, with Special Emphasis Upon the Doctrine of Separation of
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Powers, 27 ARK. L. REV. 583 (1973); Munzer & Nickel, Does the Constitution Mean What It Always Meant?, 77 COLUM. L. REV. 1029 (1977); Murphy, The Constitution: Interpretation and Intent, 45 A.B.A. J. 592 (1959); Nichols, An Appeal To Save Our Written Constitutional Form of Government, 13 DE PAUL L. REV. 15 (1963); Powell, Rules for Originalist, 73 VA. L. REV. 659 (1987); Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985); Rehnquist, Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976); Richards, Interpretation and Historiography, 58 S. CAL. L. REV. 489 (1985); Sandalow, Constitutional Interpretation, 79 MICH. L. REV. 1033 (1981); Sedler, The Legitimacy Debate in Constitutional Adjudication: An Assessment and a Different Perspective, 44 OHIO ST. L.J. 93 (1983); Sheffer, Did the Framers Intend Their Intentions?: Civil Rights, The Fourteenth Amendment, and The Election Campaign of 1866, 12 CAP. U.L. REV. 45 (1982); Simon, The Authority of the Framersm of the Constitution: Can Originalist Interpretation Be Justified?, 73 CALIF. L. REV. 1482 (1985); Simson, The Role of History in Constitutional Interpretation: A Case Study, 70 CORNELL L. REV. 253 (1985); Swindler, Reviewing Judicial Review: A Note in Constitutional History, 6 ST. LOUIS U.L.J. 121 (1960); Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683 (1985); Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781 (1983); Van Alstyne, Interpreting This Constitution: The Unhelpful Contributions of Special Theories of Judicial Review, 35 U. FLA. L. REV. 209 (1983); Wallace, A Two Hundred Year Old Constitution in Modern Society, 61 TEX. L. REV. 1575 (1983); Wofford, The Blinding Light: The Uses of History in Constitutional Interpretation, 31 U. CHI. L. REV. 502 (1964); Laycock, Book Review, 59 TEX. L. REV. 343 (1981); Murphy, Book Review, 87 YALE L.J. 1752 (1978). [FN4]. This definition deliberately avoids drawing any distinction between a subjective and an objective perspective. The author nevertheless recognizes that on occasion such distinctions seem to animate much of the debate over originalism. The reason for avoiding such distinctions here is that, upon close analysis, the interpretive line between subjective and objective historical approaches to text appears illusory. An inquiry into the meaning of language as commonly understood at the time the document was drafted would appear to many to be an objective inquiry, while a search for the original understanding of a particular set of drafters, such as the members of the Philadelphia Convention, might be thought to be a search for a collective subjective meaning. Close analysis, however, reveals that neither is an accurate characterization. Very few originalists literally desire to psychoanalyze the members of the Philadelphia Convention or any other set of relevant framers. Instead, they focus on ascertaining the reasonable meanings that might be attributed to such framers in light of the surviving primary historical materials. This inquiry is a search for the reasonable interpretations attributable to an enlarged universe of written materials--the text of the Constitution and the historical materials surrounding its adoption. It is a search for consistency within the available written historical materials--just as objective an inquiry as one that relies solely on the meaning attributed to the written constitutional text at the time. This approach to originalism merely enlarges the body of interpretively significant written materials. Similarly, an inquiry that purports to be objective because it focuses on the meaning of language as understood when the constitutional document was drafted contains considerable subjective elements. Ultimately, this approach does not ask simply what the constitutional words mean; it asks what they meant to a particular universe of persons at the time they were propounded. For the original constitutional document, that interpretive universe may include the members of the Philadelphia Convention, the members of the state ratification conventions, or the 'We the People of the United States' referred to in the preamble. Whatever the relevant interpretive constituency, however, the inquiry nevertheless is how they understood the language rather than what the language connotes today. Thus, the relevant question in the debate over originalism is not subjective or objective understanding of language; rather, it is whether to ascribe to the Constitution the meaning of its language as commonly understood today, or whether to interpret it in light of how it was historically understood by some appropriate group of 'framers' when the document was proposed and ratified. In a very thoughtful article, Professor Paul Brest offers a useful but ultimately misleading methodological classification of schools of originalist thought. See Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REV. 204, 205-18 (1980). Brest divides originalist methodology into (1) textualism, (2) intentionalism, and (3) structural analysis. For Brest, textualism is the school of thought that believes the text is the primary or exclusive source from which original understanding can be derived '(a) because of some definitional or supralegal principle that only a written text can impose constitutional obligations, or (b) because the adopters intended that the Constitution be interpreted according to a textualist canon, or (c) because the text of a provision is the surest guide to the adopters' intentions.' Id. at 205. Brest reserves the term 'intentionalist' for those who interpret 'a provision by ascertaining the intentions of those who adopted it,' id. at 209, while employing the term 'originalism' to refer to the generic category of historically based originalist interpretive methodologies, see id. at 204. Finally, relying on the work of Charles Black in Structure and Relationship in Constitutional Law (1969), Brest notes that original understanding also may be derived methodologically by comparing structural relationships between clauses of the original constitutional document to discover commonalities
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of approach and usage, as well as structures and relationships within the document. Id. at 217. Unlike Brest's paradigms, this Essay views each of these approaches simply as different methodological avenues that modern originalists are advocating for arriving at the original understanding of the document. All are originalist methodologies and are sometimes used interchangeably by originalist historians. While not an advocate of an exclusively originalist interpretive methodology, the author has employed interchangeably all three methodologies identified by Brest in his own originalist research. See, e.g., Clinton, A Mandatory Theory of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741 (1984). Thus, a textualist who resorts to the plain language of the document to ascertain the intent of the constitutional drafters at the time the document was drafted and ratified nevertheless may resort to arguments about the structural relationship of the particular provision at issue to the text of other provisions in the document, or may even look to the debates behind that provision to shed light on the meaning of the text, while still believing that the text rather than the debates or the structural relationships ultimately governs the historical interpretive question. Since Brest's originalist textualist is attempting to ascertain the plain meaning of the textual language when drafted, this textualist must resort to historical evidence beyond the text of the document to show the relevant historic linguistic conventions. Likewise, an intentionalist in Brest's taxonomy cannot possibly ignore the text of the constitutional document and frequently will be forced to consider structural relationships because the framers considered and discussed the document as an integrated whole. The structuralist, by definition, also will need to resort to the text of the document to work out the structural relationships, and may look behind the text to the debates to validate the perception of such structural relationships by the persons who drafted and adopted the document. All, by definition, are engaged in the identical quest-- the quest for historically based original understanding. The differences relate to nuances of methodology. Such variances in methodological focus are not differences of kind, as Brest's classifications would suggest. Because these methodologies are used interchangeably, often tend to shade into one another, and do not replicate the demarcation of positions in most modern debates between originalists and monoriginalists, this Essay treats all such historically based interpretive approaches as originalist, drawing few distinctions between them. The critical difference between originalists and nonoriginalists int he modern debate is simply between historically and adhistorically derived interpretive strategies. The author in part owes his choice of the phrase 'originalism' to Professor H. Jefferson Powell, who has pointed out that the more commonly used label, interpretivism, is misleading. All who seek to impart meaning to the constitutional text, whether from historical or contemporary policy perspectives, are seeking to interpret the document. Resort to historical analysis is but one of many potential modes of interpretation. Thus, those who reject the legal significance of original understanding to judicial interpretations of the Constitution still may be properly considered as engaging in an interpretivist enterprise. Professor Powell apparently prefers the term 'intentionalism,' but as suggested above, that terminology leads to additional confusion by focusing attention on only one of several plausible originalist methodologies. This confusion may have invaded Powell's historical analysis of originalism. See infra notes 50-54 and accompanying text. The term 'originalism' more clearly captures the full thrust of the argument and the various methodologies employed by those who assert that one must resort primarily or exclusively to historical research into the original understanding of the framers through originalist textualism, intentionalism, or structural means of analysis to resolve constitutional interpretive questions. [FN5]. See, e.g., Swain v. Pressley, 430 U.S. 372, 384 (1977) (Burger, C.J., concurring) ('The sweep of the Suspension Clause must be measured by reference to the intention of the Framers and their understanding of what the writ of habeas corpus meant at the time the Constitution was drafted.'); Bork, Styles in Constitutional Theory, 26 S. TEX. L.J. 383 (1985); Bork, The Struggle Over the Role of the Court, 34 NAT'L REV. 1137 (1982); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 8 (1971) ('The judge must stick close to the text and the history, and their fair implications, and not construct new rights.'); Meese, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. TEX. L.J. 455, 464 (1986) (advocating constitutional jurisprudence of original intent); Moss, The Policy and the Rhetoric of Ed Meese, 73 A.B.A. J. 64 (Feb. 1, 1987) (discussing Meese's declarations that judges should follow original intent); Address by Robert Bork, University of San Diego Law School (n.d.) (transcript on file with author) (arguing that concept of original intent is essential); Address by Attorney General Edwin Meese, University of Richmond (Sept. 17, 1986) (criticizing recent departures from traditional views); Address by Attorney General Edwin Meese, St. Louis University School of Law (Sept. 12, 1986) (critizing the 'new jurisprudence'); Address by Attorney General Edwin Meese, before the District of Columbia Chapter of the Federalist Society Lawyers Division (Nov. 15, 1985) (advocating jurisprudence of original intent). Meese felt so strongly about the originalist cause that he directed the Justice Department Office of Legal Policy to draft an extensive paper on the issue. See Justice Department Office of Legal Policy, Original Meaning Jurisprudence: A Sourcebook (Mar. 12, 1987). According to the memorandum introducing it, the sourcebook summarizes the conflicts between interpretivists and noninterpretivists and 'lays to rest' many of the arguments advanced by noninterpretivists.
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Memorandum from Assistant Attorney General Stephen Markman to Attorney General Edwin Meese (Mar. 12, 1987). The asserted purpose of the sourcebook is 'to promote a renewed recognition of the Constitution as our fundamental law.' Id. [FN6]. See, e.g., Byrn, An American Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REV. 807, 827-39 (1973) (criticizing Roe v. Wade for not referring to framers' intent); Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment, 17ST. MARY'S L.J. 29, 70-71 (1985) (arguing that Court must overrule Roe v. Wade to be faithful to original intent of drafters of fourteenth amendment). [FN7]. At various points the federal courts have had considerable difficulty deciding which clause in the Constitution, if any, supports the right of interstate migration that has been recognized and protected by the courts since the early nineteenth century. Some courts purported to ground the right in the privileges and immunities clause of article IV, 2. See, e.g., Ward v. Maryland, 79 U.S. (12 Wall.) 418, 430 (1870); Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869); Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230); see also Twining v. New Jersey, 211 U.S. 78, 97 (1908); Slaughter-House Cases, 83 U.S. 16 (Wall.) 36, 79, 80 (1872). Other courts placed reliance on the commerce clause of article I, 8 as the source of the right. See, e.g., Edwards v. California, 314 U.S. 160, 172-73 (1941); The Passenger Cases, 48 U.S. (7 How.) 282, 408-12 (1849) (McLean, J. & Wayne, J.); id. at 452 (McKinley, J.). The Twining majority, 211 U.S. at 96-97, and separate concurring opinions in Edwards, 314 U.S. at 181 (Douglas, J., concurring), 183-85 (Jackson, J., concurring), relied on the privileges and immunities clause of the fourteenth amendment to support the right. In Shapiro v. Thomson, 394 U.S. 618, 638 (1969), the Court invoked the equal protection clause of the fourteenth amendment to vindicate interstate migration protections. Finally, in United States v. Guest, 383 U.S. 745 (1966), Justice Stewart, speaking for a majority of the Court, seemed unconcerned over the textual grounding of the right, stating, 'Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.' Id. at 759 (footnote omitted). While the Court has been troubled by the textual grounding, if any, of the right of interstate migration, it has protected the right without significant academic criticism. The comparative lack of debate over the textual anchor of this right, when compared with the flood of criticism over the lack of such textual grounding for the privacy rights involved in the abortion debate, suggests that the debate may have less to do with the form and method of constitutional exposition employed in these cases than with the actual outcome of the interpretive process in each case. [FN8]. See, e.g., Brest, supra note 4, at 238; Munzer & Nickel, Does the Constitution Mean What It Always Meant?, 77 COLUM. L. REV. 1029, 1030-33 (1977); Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 CALIF. L. REV. 1482, 1482 (1985); Perry, Book Review, 78 COLUM. L. REV. 685, 704 (1978). [FN9]. See generally Brennan, The Constitution of the United States: Contemporary Ratification, 27 S. TEX. L.J. 433 (1986); Brennan, Constitutional Adjudication, 40 NOTRE DAME L. REV. 559 (1965). [FN10]. See generally Brest, supra note 4. [FN11]. See generally Grey, The Constitution as Scripture, 37 STAN. L. REV. 1 (1984); Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 90 STAN. L. REV. 843 (1978); Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975). [FN12]. See Brest, supra note 4, at 220-24; Sandalow, Constitutional Interpretation, 79 MICH. L. REV. 1033, 1068 (1981). [FN13]. See Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 948 (1985). [FN14]. See Brest, supra note 48 at 218-22. [FN15]. For an overview of legal realist philosophy, wee S. RUMBLE, AMERICAN LEGAL REALISM (1968); W. TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (1985). For a brief analysis, see L. FULLER, THE LAW IN QUEST OF ITSELF 51-65 (1940). [FN16]. THE FEDERALIST No. 49, at 338 (J. Madison) (J. Cooke ed. 1961).
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[FN17]. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819). [FN18]. Id. at 407. [FN19]. See Powell, supra note 13, at 888-924. [FN20]. Id. at 948. [FN21]. For a discussion of these interpretive strategies, see supra note 4 and accompanying [FN22]. See R. GRANT, A SHORT HISTORY OF THE INTERPRETATION OF THE BIBLE, 92-109 (rev. ed. 1984) (detailing breaks with medieval tradition of interpretation). [FN23]. Magna Carta (1215) (subsequently reissued with changes and deletions in 1216, 1217, and 1225, 9 Hen., 2, ch. I) (establishing binding rules of law and fundamental rights of citizens that sovereign could not violate). [FN24]. Bill of Rights of 1689, 1 Will. and Mary, 2, ch.2 (document created to reduce influence and prerogatives of sovereign by establishing basic rights of Englishmen and limitations upon government to make the rights effective). For historical commentary on the Bill of Rights and the Magna Carta, see generally 1 ROOTS OF THE BILL OF RIGHTS, 4-16, 40-46 (B. Schwartz ed. 1980). [FN25]. See, e.g., 2 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS AND OTHER ORGANIC LAWS 765 (F. Thorpe ed. 1909) (charter of Georgia, 1732); 1 id. at 557 (charter of Delaware, 1701); 5 id. at 2743 (charter of Carolina, 1663); 3 id. at 1846 (charter of Massachusetts Bay Colony, 1629); 7 id. at 3783 (first charter of Virginia, 1606). [FN26]. 3 d. at 1841; see also 1 id. at 523 (fundamental agreement creating civil government for Colony of New Haven, June 4, 1639). [FN27]. See, e.g., Conference between Governor Andros and the Esopus Indians, Apr. 27, 1677, VII EARLY AMERICAN INDIAN DOCUMENTS: TREATIES & LAWS, 1607-1789, at 381-82 (B. Graymont ed. 1985); Spotswood's Treaty with the Tuscaroras, Feb. 27, 1714, IV id. at 211-16 (W. Robinson ed. 1983); Treaty of Lancaster, July 2, 1744, V id. at 86-87; Treaty with the Twightee Indians, July 23, 1748, II id. at 183-85 (D. Kent ed. 1984); see also THE HISTORY AND CULTURE OF IROQUOIS DIPLOMACY 85-88 (F. Jennings ed. 1985). [FN28]. Locke viewed people as originally and naturally living in a state of liberty. See J. LOCKE, SECOND TREATISE ON CIVIL GOVERNMENT (1690), reprinted in LOCKE'S TWO TREATISES OF GOVERNMENT 287-89 (P. Laslett ed. 1970). But that state lacked security because people were 'judges in their own cases.' Id. at 293. Consequently, for the sake of security, people ended the state of nature by mutually agreeing to unite into one community. Id. at 294-95. Through this social compact, the individual 'puts himself under an Obligation to every one of that Society, to submit to the determination of the majority.' Id. at 350. [FN29]. See, e.g., Petition from the Assembly of Pennsylvania to the King (Mar. 9, 1771), reprinted in THE POLITICAL WRITINGS OF JOHN DICKINSON 1764- 1774, at 451-52 (P. Ford ed. 1970) (protesting duties on tea and other non-British products imported into the colonies). See generally SOURCES AND DOCUMENTS ILLUSTRATING THE AMERICAN REVOLUTION 1764-1788 (S. Morison 2d ed. 1929) (reprinting examples of petitions and publications used to air grievances). [FN30]. The Declaration of Independence (U.S. 1776). [FN31]. See, e.g., 7 F. THORPE, supra note 25, at 3812 (Virginia); 1 id. at 562 (Delaware); 2 id. at 777 (Georgia). Rhode Island and Connecticut did not follow the lead of the other states by drafting new constitutions. Instead, they relied on their colonial charters for some period after independence. [FN32]. On June 12, 1776, the Continental Congress appointed a committee to draft articles of confederation. 5 JOURNALS OF THE CONTINENTAL CONGRESS 1774- 1789 433 (W. Ford ed. 1906). After several drafts and much debate, the Continental Congress adopted a final draft on Nov. 15, 1777. 9 id. at 907- 25 (1907). The Articles then were sent to the states along with a letter recommending that the state legislatures give their approval by Mar. 10, 1778. Id. at 925, 928, 932-35. Such prompt ratification by the states did not occur, and the Articles did not take effect until Mar. 1,
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1781, when Maryland became the thirteenth state to sign the document. 19 id. at 213-23 (G. Hunt ed. 1912). [FN33]. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 1-606 (M. Farrand ed. 1966) [hereinafter RECORDS]; 2 id. at 1-128. The Virginia Plan called for a two-house legislature with states represented in each chamber according to population. The early deliberations of the Convention over the Virginia Plan took place principally as a committee of the whole and lasted from May 29, 1787, when Randolph presented the Virginia proposals, 1 id. at 16, 20-28, to July 26, 1787. [FN34]. 2 id. at 16, 23, 24; 3 id. at 595-609. Pinckney's plan was referred to the Committee of the Whole, but nothing more was recorded about it until July 24, when the committee decided not to consider the plan any further. Id. at 595. [FN35]. 1 id. at 241, 242-47, 312-33. The New Jersey Plan called for revising the Articles of Confederation to provide new executive and judicial branches of government, and to give the unicameral Congress more power while retaining the one-state, one-vote system. Even before establishing to Committee of Detail, the Convention voted on June 19 to approve the nationalistic amended Virginia proposals and to disapprove the more state-sovereignty oriented New Jersey Plan. 1 id. at 312-33. Another very interesting draft constitutional document was found in the papers of Alexander Hamilton. 3 id. at 617. This strongly nationalistic plan was probably prepared in response to the New Jersey proposals as part of a speech that Hamilton delivered on June 18, 1787, immediately before the Convention rejected the Paterson plan. Although Hamilton delivered the speech, there is no evidence that he presented this particular draft document to the Convention. Some of its clauses, however, including the so-called exceptions and regulations clause now found in article III, 2, mysteriously found their way into the draft document proposed by the Committee of Detail. See Clinton, supra note 4, at 779. [FN36]. For further discussion of the establishment of the Committee of Detail, see 2 RECORDS, supra note 33, at 85-86, 95-96. [FN37]. Professor Powell gives several illustrations of the delegates' concern about honing the precise language of the draft document, evidencing in Powell's view an exceptional attention to linguistic precision. Powell, supra note 13, at 903 nn.89-91. Significantly, most of the illustrations that Powell cites occurred during the period following promulgation of a draft document by the Committee of Detail. See, e.g., 2 RECORDS, supra note 33, at 202 (debate on Aug. 7 over defining freeholders for purposes of suffrage); id. at 301-02 (Madison expressing concern on Aug. 15 over phrasing of clause on veto power of President and inquiring whether ambiguities could be avoided over whether its language was 'confined to bill' by calling proposed act a resolution); id. at 345 (Madison and Pinckney expressing concern on Aug. 20 that, as drafted, necessary and proper clause might be construed to exclude establishment of all offices, and Gouverneur Morris, James Wilson, and others responding that such 'amendment could not be necessary'); id. at 427 (Dickinson expressing concern on Aug. 27 that impeachment power that included 'disability' as ground 'was too vague'). [FN38]. See, Clinton, supra note 4, at 779 n.140 and accompanying text. [FN39]. See, e.g., L. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 181-83 (G.E.M. Anscombe trans. 3d ed. 1958) (every word has a different character or 'corona' in different contexts); Butchvaror, Meaning-as-Use and Meaning-as-Correspondence, 35 PHIL. 314, 315 (1960) (rejecting Wittgenstein's claims that meaning of word is its use and that objective rules of meaning are impossible); Ryle, Ordinary Language, 62 PHIL. REV. 167, 186 (1953) (discussing 'informal logic of the employment of expressions' in ordinary language; see also Wofford, The Blinding Light: The Uses of History in Constitutional Interpretation, 31 U. CHI. L. REV. 502, 511-513 (1964). [FN40]. See, e.g., 2 RECORDS, supra note 33, at 345. On Aug. 20, both Madison and Pinckney proposed inserting a phrase into the necessary and proper clause empowering Congress to 'establish all offices' since it appeared to them that the clause as drafted was 'liable to civil that the latter was not included in the former.' Id. A number of delegates, including Gouverneur Morris, James Wilson, and Oliver Ellsworth, objected that such an 'amendment could not be necessary,' and the proposal was defeated two states to nine, apparently on the grounds of its redundancy. Id. [FN41]. Id. at 181. [FN42]. Id. at 301-02. [FN43]. Id. at 303, 304-05. Sherman objected to the change because he 'thought it unnecessary, except as to votes for taking money out of the Treasury which might be provided for in another place.' Id. at 305. The Committee of Style
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ultimately refined the language into that currently found in article I, 7.Id. at 594. [FN44]. Id. at 430. [FN45]. Id. [FN46]. Id. [FN47]. See Powell, supra note 13, at 904. [FN48]. Id. [FN49]. Address by Learned Hand before the Juristic Society of the University of Pennsylvania Law School (June 1930), reprinted as Hand, Sources of Tolerance, 179 U. PA. L. REV. 1, 12 (1930). Hand characterized the litigable words of the Constitution as 'empty vessels into which [a judge] can pour nearly anything he will.' Id. [FN50]. See supra note 4. [FN51]. Compare Powell, supra note 13, at 921 (suggesting that James Madison's interpretive stance during Jay Treaty ratification debates of 1796 rejected originalist historical approach based on Madison's statement that 'sense of the Convention [was not] material [to] any constitutional question') with infra notes 97-115 and accompanying text (suggesting Madison did not dispute use of originalist historical inquiry but rather disagreed on relevant interpretative constituency to be consulted). [FN52]. See Powell, supra note 13, at 939. [FN53]. Professor Powell stated: [A]t the time, that term [intentions] referred to the 'intentions' of the sovereign parties to the constitutional compact, as evidenced in the Constitution's language and discerned through structural methods of interpretation; it did not refer to the personal intentions of the framers or of anyone else. The relationship of modern intentionalism to this early interpretive theory is purely rhetorical. Id. at 948. Powell therefore concludes that 'the claim or assumption that modern intentionalism was the original presupposition of American constitutional discourse . . . is historically mistaken.' Id. [FN54]. The illustration of the Aug. 27 debate on the judicial article cited above is but one of several examples of this problem. Another illustration is Powell's treatment of the 1796 debate in the House of Representatives over the meaning of the treaty provisions of the Constitution. See infra notes 65-119 and accompanying text. In a scathing, vicious, and inappropriately ad hominem attack on Professor Powell, Raoul Berger has accused Powell of 'persistent disregard of evidence that stares him in the face.' Berger, 'Original Intention' in Historical Perspective, 54 GEO. WASH. L. REV. 296, 336 (1986). By Berger's yardstick, perhaps the most egregious example of such near-sightedness was Powell's citation of Blackstone to support his proposition that late eighteenth-century courts interpreted wills and statutes similarly, paying only lip service to the subjective intentions of their drafters, when, according to Berger, on the same page as the quotation upon which Powell relies the following appears: 'That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit. For the maxims of law are, that 'verba intentioni [et non contra] debent inservire' [words ought to wait upon the intention, not the reverse].' Id. at 305 (quoting 2 W. BLACKSTONE, COMMENTARIES *379). Compare, Powell, supra note 13, at 896-97. Actually, Professor Berger also taake his quoted sentence out of context. The full portion of the Blackstone quotation reads as follows: 1. That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit. For the maxims of law are, that 'verba intentionioni debent inservire;' and 'benigne interpretamur chartas propter simplicitatem laicorum.' And therefore the construction must also be reasonable, and agreeable to common understanding. 2. That quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est: but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso. And another maxim of law is, that 'mala grammatica non vitiat chartam;' neither false English nor bad Latin will destroy a deed. Which perhaps a classical critic may think to be no unnecessary caution. W. BLACKSTONE, supra, at *379.
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[FN55]. 1 RECORDS, supra note 33, at 15. [FN56]. 2 id. at 648. [FN57]. Id. [FN58]. Id. [FN59]. Id.; see also 3 id. at 81-82, 144-45. [FN60]. The antipublication rules in force during the Convention were probably principally designed to facilitate frank and open discussion and to remove outside partisan political influences from the deliberations of the delegates. [FN61]. James McHenry explained the decision to the Maryland House of Delegates as follows: 'Convention having deposited their proceedings with their Worthy President, and by a Resolve prohibited any copy to be taken, under the Idea that nothing but the Constitution thus framed and submitted to the Public could come under their consideration . . ..' 3 RECORDS, supra note 33, at 144-45. [FN62]. See supra note 1 and accompanying text. [FN63]. THE FEDERALIST NO. 83, at 560 (A. Hamilton) (J. Cooke ed. 1961). [FN64]. Id. at 338. [FN65]. See, e.g., 1 ANNALS OF CONG. 557 (1789) (Abraham Baldwin); id. at 725 (Roger Sherman); id. at 768 (Roger Sherman); id. at 1110 (Roger Sherman); 2 ANNALS OF CONG. 1200-01 (1790) (Abraham Baldwin); id. at 1551 (Roger Sherman); see also 5 ANNALS OF CONG. 537 (1796) (Abraham Baldwin); 7 ANNALS OF CONG. 1968-2005, quoted in 3 RECORDS, supra note 33, at 376-79. Jonathan Dayton, a New Jersey delegate to the Philadelphia Convention, even resorted in House debates to his recollection of the unexpressed intentions of the framers. 3 ANNALS OF CONG. 279 (1791). [FN66]. 2 ANNALS OF CONG. 1360-61 (1790). [FN67]. 10 id. at 29 (1800); id. at 97. [FN68]. 2 id. at 1896 (1791). For the purposes of this Essay, all quotations from Farrand's Records, Elliot's Debates, and the Annals of Congress are treated as though they are direct quotes of the speaker although they were transcribed by reporters and are couched in the third person. [FN69]. This treaty with Great Britain, which governed commerce and navigation, resulted from the fears of Federalist leaders that disputes between the nations would lead to war. 12 ENCYCLOPAEDIA BRITANNICA 979-80 (1967). [FN70]. 5 ANNALS OF CONG. 783 (1976). [FN71]. Id. at 495. [FN72]. Id. [FN73]. Id. at 496. [FN74]. Id. at 616. The report of Tracy's speech continues: He acknowledged, that, from such debates, the real state of men's minds or opinions may not always be recollected with accuracy; but he was induced to quote the above in this part of his argument to show that whatever might have been thought by the members of that Convention to be checks on the operation of Treaties, by virtue of the power of withholding appropriations, yet no one took such extensive ground as is now contended for by some of the supporters of the resolution under consideration. Id. at 617. [FN75]. Id. at 621.
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[FN76]. Id. at 582. [FN77]. Id. at 520. [FN78]. Id. [FN79]. Id. at 523. [FN80]. Id. at 573-74. [FN81]. Id. at 701-02. [FN82]. Id. at 701: The gentleman from Virginia had borne an exalted rank among those who framed the very instrument. To his genius and patriotism, in a great degree, he had always understood, were we indebted for the Constitution. Would it not be expected that he who had helped to speak through the Constitution would be well prepared to expound it by countemporaneous opionions? Would it not be desirable that, if there are doubts, if we wander in the dark, the gentleman should afford us light, as he has it in abundance? If the Convention spoke mysterious phrases, and the gentleman helped to utter them, will not the gentleman aid the expounding of the mystery? If the gentleman was the Pythia in the temple, ought he not to explain the ambiguous language of the oracle? To no man's exposition would he listen with more deference. If any cause could justify the intrusion of curiosity upon a deposit of secrets in a very sanctuary itself, it would be this doubt, and he should almost feel at liberty to open the Journals of the Convention, to see at least what they meant who spoke a language to others ambiguous, but to himself plain, incontrovertibly plain. Id. [FN83]. 20 THE PAPERS OF ALEXANDER HAMILTON 22 (H. Syrett ed. 1974) (Hamilton's remarks were published in New York press under pseudonym Camillus). [FN84]. Hamilton's originalist stance was, however, not a consistent interpretive perspective. In his opinion to President Washington on the constitutionality of the national bank, Hamilton refuted the position of then Secretary of State Thomas Jefferson in the following terms: The Secretary of State will not deny, that whatever may have been the intention of the framers of constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual & established rules of construction. Nothing is more common than for laws to express and effect, more or less than was intended. If then a power to erect a corporation, in any case, be deducible by fair inference from the whole or any part of the numerous provisions of the constitution of the United States, arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected. 8 id. at 111 (H. Syrett ed. 1965). Given Hamilton's inconsistency on this question, it appears that many of the framers were probably prepared to resort to originalist interpretive strategies when they thought it served their political ends and to reject them when they feared that the weight of the historical evidence might oppose their position. Originalism was only one of a number of plausible and useful interpretive methodologies. [FN85]. 20 id. at 23 (H. Syrett ed. 1974). [FN86]. Id. [FN87]. Id. at 23-24. [FN88]. 5 ANNALS OF CONG. 727 (1796) (Rep. Albert Gallatin of Pennsylvania). Specifically, Gallatin said: In order to decide which doctrine was most conformable to the Constitution, it was necessary to attend to and to compare both parts of the instrument, and to adopt that construction which would give full effect to all the clauses and destroy none. But, before he entered in that examination, he found himself obliged to follow the gentlemen who had spoken before him through a train of arguments, drawn not from the letter or spirit of the Constitution, either directly or by implication, but from a variety of extraneous sources. The Law of Nations, the practice under the Articles of Confederation, the opinions of individuals and of Conventions, had been conjured up as uniting in ascribing to the power of making Treaties the most unlimited and unbounded effect. Id.
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[FN89]. Id. at 635. For other arguments against this use of extrinsic sources, see id. at 603 (Rep. William Lyman); id. at 505 (Rep. William Branch Giles); id. at 537 (Rep. Abraham Baldwin). Baldwin, who previously had resorted frequently to original understanding arguments, cast his objections in terms of the burden and level of proof required to establish original intent. After noting that Smith of South Carolina and Sedgwick of Massachusetts had 'produced a number of publications' and 'quoted a number of meetings and party writings' that purported to construe broadly the treaty powers, Baldwin continued: He was willing to allow due force to that kind of reasoning, if it has, in fact, been the common view of the subject; if it is the one that most naturally presents itself on reading that part of the Constitution, it would be a good reason for calling up all their candor and diligence on the occasion, in comparing and reconciling it to the other parts of the Constitution; but it was not of sufficient force to be a ground of absolute certainty that the thing is definitely settled, and that they ought not to deliberate upon it. Id. at 538-39 (emphasis added). [FN90]. Id. at 574. [FN91]. Id. at 760-62. [FN92]. Id. at 761. [FN93]. Id. [FN94]. Id. [FN95]. Id. [FN96]. Id. [FN97]. Id. at 438. [FN98]. Id. at 487-94. [FN99]. Id. at 494. Madison's particular interpretive conclusion is summed up as follows: No construction might be perfectly free from difficulties; that which he had espoused was subject to the least, as it gave signification to every part of the Constitution; was most consistent with its general spirit, and was most likely, in practice, to promote the great object of it, the public good. Id. [FN100]. 3 RECORDS, supra note 33, at 372. [FN101]. Id. [FN102]. 5 ANNALS OF CONG. 775 (1796). [FN103]. Id. This argument presages by almost 200 years the contemporary arguments of some originalists that the collective original understanding of the Philadelphia Convention or of the state ratification conventions is not discoverable because of the problem of ascertaining a collective intent of a multimember body and because only a small portion of those who voted for any proposal spoke and specifically addressed their understandings of the proposal and reasons for support. See Brest, supra note 4, at 214-15; see also infra note 268 (discussion of methodological assumptions surrounding these concerns). [FN104]. 5 ANNALS OF CONG. 775 (1796). [FN105]. Id. [FN106]. Id. [FN107]. Id. at 776. [FN108]. Id.
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[FN109]. Id. [FN110]. Id. at 775-79. [FN111]. U.S. CONST. preamble: 'We the People of the United States . . . do ordain and establish this Constitution for the United States of America.' For an excellent discussion of the history of notions of popular sovereignty and their intellectual impact on the framing of the Constitution, see G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 453-63, 532-43, 546-47 (1969). [FN112]. 5 ANNALS OF CONG. 776 (1796). [FN113]. Id. at 495. [FN114]. See supra text accompanying note 68. [FN115]. See supra text accompanying note 1. [FN116]. Powell, supra note 13, at 948. [FN117]. Id. [FN118]. See 2 RECORDS, supra note 33, at 648 (suggestion of James Wilson); see also supra text accompanying notes 55-60. [FN119]. Letter from James Madison to Henry Lee (June 25, 1824), quoted in 3 RECORDS, supra note 33, at 464. [FN120]. Letter from Gouverneur Morris to Timothy Pickering (Dec. 22, 1814), quoted in 3 RECORDS, supra note 33, at 420. [FN121]. See, e.g., 3 RECORDS, supra note 33, at 375 (Rep. William Findley discussing presidential appointment power in the House of Representatives in 1798); id. at 375-76 (Abraham Baldwin reciting use of references to history of Philadelphia Convention in debate over the National Bank); id. at 421 (Gouverneur Morris in private correspondence in 1815 resorting to his recollection of history of Philadelphia Convention to interpret intent of appointment clause). [FN122]. 17 U.S. (4 Wheat.) 316 (1819). [FN123]. 3 RECORDS, supra note 33, at 435. [FN124]. Letter from John Quincy Adams to James Madison (Dec. 15, 1817) (relaying requests to publish a copy of the Convention Journal), reprinted in VI WRITINGS OF JOHN QUINCY ADAMS 271, 273 (W. Ford ed. 1916). [FN125]. Letter from James Madison to John Quincy Adams (Dec. 23, 1817) (deferring to Secretary of State Adams' judgment about the usefulness of publishing the Journal), reprinted in 3 RECORDS, supra note 33, at 423-24. At the time, Thomas B. Wait related the anecdote in a letter to Rufus King that John Quincy Adams had informed him that 'should the publication of the Journals of the Convention . . . depend on the consent of Mr. M[adison] they probably would never see the light.' VI LIFE AND CORRESPONDENCE OF RUFUS KING 104 (C. King ed. 1971). [FN126]. It appears that the existence of Madison's conpious notes on the Philadelphia Convention had become common knowledge in the early nineteenth century, long before they were finally published in 1840 after his death, and that Madison was often consulted for his knowledge of historical events surrounding the Convention. In most instances, Madison responded to interpretive questions by resort to his recollection, no doubt aided by his own notes, of the events surrounding the drafting and ratification of the Constitution. See, e.g., 3 RECORDS, supra note 33, at 434-35 (letter in response to request by Secretary of State John Quincy Adams in 1819, probably preparatory to initial publication of Journals); id. at 447-48 (letter to Thomas Ritchie, Sept. 15, 1821); id. at 448-50 (letter to J. G. Jackson, Dec. 27, 1821); id. at 463 (letter to Edward Livingston, Apr. 17, 1824); id. at 474-75 (letter to Thomas Cooper, Dec. 26, 1826). In an 1827 letter to S. H. Smith, Madison explained his refusal to publish his journals until his death by writing: I have not yet ceased to think, that publications of them, posthumous as to others as well as myself, may be most delicate and most useful also, it to be so at all. As no personal or party views can then be imputed, they will be read with less of personal or party feelings, and consequently, with whatever profit, may be promised by them. It is true also that after a
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certain date, the older such things grow, the more they are relished as new; the distance of time like that of space from which they are received, giving them that attractive character . . .. Id. at 475; see also id. at 447, 448 (same point made in letters to Thomas Ritchie and J. G. Jackson in 1821). In the same letter to S. H. Smith, he noted that at the time only three members of the Philadelphia Convention had survived--Rufus King, William Few, and himself. See id. at 475. Madison's correspondence also seems to suggest that in his later years he relished his role as exclusive caretaker of the most comprehensive set of notes on the Convention and employed them to criticize the work of others. For example, in a Dec. 7, 1821 letter to J. G. Jackson he commented on the inaccuracy of the then recently published description of the Convention proceedings taken from Robert Yates' notes. While conceding that his information about the Yates work only came in scraps from the newspapers, Madison nevertheless opined, 'I cannot doubt that the prejudices of the author guided his pen, and that he has committed egregious errors at least, in relation to others as well as to myself.' Id. at 449. In short, one suspects that Madison delayed publication until after his death so that his notes quite literally would represent the last word on the history of the Philadelphia Convention. [FN127]. Letter from James Madison to Andrew Stevenson (Nov. 17, 1830), reprinted in id. at 483-90. An additional undelivered memorandum on the same subject is set forth in id. at 491-94. [FN128]. Id. at 489. [FN129]. Id. at 483. [FN130]. See id. at 483-90. [FN131]. Id. at 489. [FN132]. In private correspondence with his closest friends, such as Thomas Jefferson, Madison apparently was willing to resort to his own journals of the Philadelphia Convention to critique public conduct he found inconsistent with the intent of the delegates. See supra text accompanying note 101. [FN133]. In 1821, public attention centered on the history of the Philadelphia Convention because of the publication of the Convention Journals and Yates' notes and recollections from the Convention. Madison was entreated to publish his own journals to elaborate upon that history. Responding to such an inquiry from Thomas Ritchie, Madison indicated that he thought publication before his death indelicate and somehow in violation of the antipublication rules of the Convention. He therefore indicated that his journals would not be published until after his death. See Letter from James Madison to Thomas Ritchie (Sept. 15, 1821), quoted in 3 RECORDS, supra note 33, at 447-48. Madison continued: As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, [sic] & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses. Id. (emphasis added). For an admirable effort to collect Madison's correspondence, speeches, and other statements reflecting his interpretive approach, see Powell, supra note 13, at 935-41. [FN134]. Letter from James Madison to J. G. Jackson (Dec. 27, 1821); quoted in 3 RECORDS, supra note 33, at 450. [FN135]. Letter from James Madison to Professor Davis (1832), quoted in 3 RECORDS, supra note 33, at 518-20. [FN136]. Id. at 520. [FN137]. Id. [FN138]. Id. [FN139]. Id. [FN140]. Id. at 521.
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[FN141]. Id. at 520. [FN142]. J. TAYLOR, NEW VIEWS OF THE CONSTITUTION OF THE UNITED STATES 11 (L. Levy rev. ed. 1971) (1823). [FN143]. See Berger, supra note 54, at 307. [FN144]. See 1 RECORDS, supra note 33, at xiv-xv, xxi. [FN145]. See infra text accompanying notes 152-53. [FN146]. See I THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 33-38 (M. Jensen ed. 1976). [FN147]. See infra notes 154-74 and accompanying text. [FN148]. 17 U.S. (4 Wheat.) 122 (1819). [FN149]. Id. at 202. It should be noted that the challenge did not rely on affirmative historical evidence of original understanding, but rather on negative inferences from inconsistencies between a potential interpretation of the document and the status quo ante. For a critique of the methodological assumptions of this approach to ascertaining original meaning, see infra notes 267-68 and accompanying text. [FN150]. 17 U.S. (4 Wheat.) at 202-03. While resting principal interpretive reliance on plain meaning approaches to the text of the document, Marshall was not beyond using intentionalist interpretive strategies. In McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819), decided the same year as Sturges, Marshall noted that the word 'necessary' employed in the necessary and proper clause had various meanings in different contexts. He then continued, 'This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.' Id. at 414 (emphasis added). Thus, for Marshall, intentionalism was one of several interpretive approaches properly employed when the language of the document was susceptible to various interpretations. [FN151]. See supra note 4 (explanation of textualism as originalist methodology). [FN152]. THE FEDERALIST (J. Cooke ed. 1961). Thomas Jefferson would later noted that 'appeal [to The Federalist] is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the United States, on questions as to its genuine meaning.' T. JEFFERSON, THE COMPLETE JEFFERSON 1112 (S. Padover ed. 1943), quoted in Wilson, The Most Sacred Text: The Supreme Court's Use of The Federalist Papers, 1985 B.Y.U. L. REV. 65, 66-67 n.6. When first published, The Federalist was not held in such universally high esteem by those who opposed ratification of the Constitution. One antifederalist commentator at the time characterized the then unknown author as a person 'who pants for a fat office under the new system of government'--a clearly prescient statement, even if not a correct assessment of the motives of Madison, Hamilton, and Jay. XIII THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 493 (J. Kaminski & G. Saladino eds. 1981). [FN153]. See, e.g., Pamphlet of Nov. 8, 1787, reprinted in XIV THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 63-74 (J. Kaminski and G. Saladino ed. 1983); Essay by a Landholder (Dec. 17, 1787), reprinted in id. at 448-52; Essay by an American (Dec. 28, 1787), reprinted in XV id. at 165-71 (1984). [FN154]. See generally Wilson, supra note 152. [FN155]. The first direct citation of The Federalist by the Supreme Court apparently occurred in Penhallow v. Doane, 3 U.S. (3 Dall.) 54 (1795). [FN156]. 3 U.S. (3 Dall.) 386, 391 (1798). [FN157]. 10 U.S. (6 Cranch) 87, 122 (1810). [FN158]. 17 U.S. (4 Wheat.) 316, 406-07 (1819).
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[FN159]. 10 U.S. (6 Cranch) 87, 122 (1810). [FN160]. 19 U.S. (6 Wheat.) 264 (1821). [FN161]. Id. at 295. [FN162]. Id. at 418-19. [FN163]. 22 U.S. (9 Wheat) 738, 808 (1824) (citing The Federalist No. 80 for proposition that judicial authority must be coextensive with legislative power). [FN164]. 22 U.S. (9 Wheat.) 1 passim (1824). [FN165]. 33 U.S. (8 Pet.) 591, 604, 639-40 (1834). [FN166]. 5 U.S. (1 Cranch) 137 (1803). [FN167]. Id. at 177-80. [FN168]. 17 U.S. (4 Wheat.) 316 (1819). [FN169]. THE FEDERALIST No. 29, at 181 (A. Hamilton) (J. Cooke ed. 1961); id. No. 33, at 203 (A. Hamilton); id. No. 44, at 299 (J. Madison). [FN170]. See Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837) (upholding validity of New York immigration law requiring masters of incoming ships to report names, ages, birthplaces, occupations and last legal residences of all passengers). [FN171]. Wilson, supra note 152, at 66 n.3; see also Pierson, The Federalist in the Supreme Court, 33 YALE L.J. 728, 734-35 (1924) (surveying Supreme Court citations of The Federalist). Unfortunately, in presenting his frequency count, Wilson used decennial break points rather than changes in the Supreme Court stewardship. Thus, Taney Court decisions of the late 1830s are grouped together with Marshall Court decisions of the early 1830s, making historical analysis of the use of The Federalist during these transitional periods more difficult. Wilson apparently derived his early statistics from the Pierson article since neither LEXIS nor WESTLAW at the time surveyed cases before 1925. See Wilson, supra note 152, at 65 n.1. Wilson's early statistics may be somewhat suspect, however, since they were not completely confirmed by the author's own WESTLAW search of Supreme Court cases back to 1789 using the search term 'federalist' with the date set to before Jan. 1, 1865. This search turned up two references to The Federalist in the pre-Marshall Court era, see supra notes 155-56 and accompanying text, whereas Wilson's table only reports one. [FN172]. 28 F. Cas. 614 (D. Mass. 1808) (No. 16,700). [FN173]. Id. at 618; see also United States v. Chapels, 25 F. Cas. 399, 399 (C.C. Va. 1819) (No. 14,782); United States v. Bainbridge, 24 F. Cas. 946, 950 (C.C. Mass. 1816) (No. 14,497); United States v. Howard, 26 F. Cas. 390, 391 (C.C. Pa. 1816) (No. 15,404); United States v. Wonson, 28 F. Cas. 745, 750 (C.C. Mass. 1812) (Mo. 16,750). [FN174]. Bainbridge, 24 F. Cas. at 950. [FN175]. 12 F. Cas. 984 (D. Me. 1840) (No. 6,914). [FN176]. Id. at 991; see also United States v. Morris, 26 F. Cas. 1323, 1332 (C.C. Mass. 1851) (No. 15,815); United States v. Clements, 25 F. Cas. 467, 479 (C.C.E.D. Va. 1851) (No. 14,817); United States v. New Bedford Bridge, 27 F. Cas. 91, 107 (No. 15,867) (C.C. Mass. 1847). [FN177]. E.g., Miller v. McQuerry, 17 F. Cas. 335, 337 (C.C. Ohio 1853) (No. 9,583); United States v. Scott, 27 F. Cas. 990, 993-95 (D. Mass. 1851) (No. 16,240b). [FN178]. Miller, 17 F. Cas. at 337 (suggesting that fugitive slave provision had been discussed in every state ratification convention); Scott, 27 F. Cas. at 993-95 (tracing history of ratification of Constitution and amendments proposed by
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states during this period). [FN179]. THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787 (J. Elliot ed. 1881). The first edition of Elliot's Debates was published in 1830 and a second edition was thereafter registered in 1836 for the use of the members of Congress pursuant to Act of Congress with Clerk's office of the District Court for the District of Columbia. Initially, Madison's notes of the Philadelphia Convention were published as part of The Papers of James Madison (H. D. Gilpin ed. 1840), cited in 1 RECORDS, supra note 33, at XV. In 1845, however, they were republished as a new fifth volume to Elliot's Debates, which thereafter became a classic source for the proceedings of both the state and federal conventions. [FN180]. E.g., Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 538, 594 (1842); Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257, 297 (1837); Ex parte Benedict, 3 F. Cas. 159, 170 (D.N.Y. 1862) (No. 1,292). [FN181]. 40 U.S. (6 Pet.) 518 (1841). [FN182]. Id. at 556. [FN183]. 60 U.S. (19 How.) 393, 521, 522, 536 (1856). [FN184]. See, e.g., Cross v. Harrison, 57 U.S. (16 How.) 164, 176 (1853) (denying recovery of money California had collected through war tariff); Smith v. Turner, 48 U.S. (7 How.) 283, 396 (McLean, J.) (declaring unconstitutional state taxes on alien passengers arriving in state ports); id. at 474 (Taney, J., dissenting); id. at 512-13 (Daniel, J., dissenting); id. at 542-43 (Woodbury, J., dissenting) (1849); Commercial Bank v. Buckingham's Executors, 46 U.S. (5 How.) 317, 337 (1847) (finding violation of impairment of contracts clause). [FN185]. For a discussion of the various methodologies employed by originalists and a definition of intentionalism, see supra note 4. [FN186]. This section has dealt with pre-Civil War interpretive history and is therefore relevant only to the use of originalist interpretation for those portions the Constitution adopted in this period. The interpretive history of other portions of the document, including the highly important post-Civil War amendments, may reflect greater stress on originalist interpretive traditions. [FN187]. R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 373 (1977). [FN188]. Id. at 373-96. In cases interpreting 42 U.S.C. 1981, the Supreme Court recently has shown some sensitivity to the issues posed in this section. The Court has noted the potential for misconstruing documents if they are interpreted anachronistically, approaching the words in a modern sense, rather than pursuing the manner in which the drafters understood the language in question. In Saint Francis College v. Al-Khazraji, 107 S. Ct. 2022 (1987), the Court extensively relied on the definitions and approaches to race contained in nineteenth-century dictionaries and encyclopedias to hold that the racial animus required by 1981 subsumed a far broader category of classifications than the ethnological divisions to which such distinctions apply today. Thus, the Court held that 1981 protected any identifiable class of persons who were subjected to discrimination solely because of 'their ancestry or ethnic characteristics.' 107 S. Ct. at 2028; see also Shaare Tefila Congregation v. Cobb, 107 S. Ct. 2019 (1987). For further discussion of the problems of anachronistic reasoning in the search for original understanding, see Powell, Rules for Originalists, supra note 3, at 672-74. [FN189]. J. McCLELLAN, JOSEPH STORY AND THE AMERICAN CONSTITUTION 116- 17 (1971), quoted in R. BERGER, supra note 187, at 373 n.1. [FN190]. R. BERGER, supra note 187, at 373 (footnote omitted). [FN191]. 17 U.S. (4 Wheat.) 316, 407-08, 415 (1819). These statements are quoted in the text accompanying infra note 203.
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[FN192]. R. BERGER, supra note 187, at 375. Berger did go on to rely on Gerald Gunther's remarkable historical work that unearthed Chief Justice Marshall's pseudonymous defense of McCulloch to indicate that Marshall ultimately asserted that the power to decide constitutional questions 'cannot be the assertion of a right to change that instrument.' See id. at 376-77 (citing JOHN MARSHALL'S DEFENSE OF McCULLOCH v. MARYLAND 209 (G. Gunther ed. 1969)). Berger's inattention to the intellectual history during which Marshall was writing, however, prevented him from fully explicating Marshall's point. [FN193]. See id. at 379-96. [FN194]. See generally I. NEWTON, MATHEMATICAL PRINCIPLES OF NATURAL PHILOSOPHY (F. Cajori rev. ed. 1934) (1687) (claiming that single mathematical law could account for phenomena of heavens, tides, and motion of objects on earth); ISAAC NEWTON'S PAPERS AND LETTERS ON NATURAL PHILOSOPHY (I.B. Cohen ed. 1958) (collection of Newton's scientific papers). [FN195]. The Declaration of Independence para. 2 (U.S. 1776). [FN196]. See generally J. LOCKE, Second Treatise on Government, in TWO TREATISES OF GOVERNMENT (P. Laslett 2d rev. ed. 1970) (3d ed. 1698); supra note 28. [FN197]. See generally MONTESQIEU, THE SPIRIT OF LAWS (D. Carrithers rev. ed. 1977) (1st French ed. 1721). [FN198]. G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 273- 91 (1969). Perhaps the best evidence capturing the relationship of natural rights jurisprudence to the then important popular sovereignty notions is a statement by Wilson to the Pennsylvania ratification convention explaining why a specific bill of rights, like those found in the state constitutions, was unnecessary. Wilson said, 'The people of the United States are now in the possession and exercise of their original rights, and while this doctrine is known and operates, we shall have a cure for every disease [of government].' 1 PENNSYLVANIA AND THE FEDERAL CONSTITUTION 1787-1788, at 341 (L. Levy rev. ed. 1970) (J. McMaster & F. Stone eds. 1888). [FN199]. 3 U.S. (3 Dall.) 386, 387-88 (1798). See generally Currie, The Constitution in the Supreme Court: 1789-1801, 48 U. CHI. L. REV. 819, 884 (1981) (review of early Supreme Court opinions reflected 'symptoms of free-wheeling judicial discretion' and language suggesting willingness to enforce principles of natural justice). [FN200]. Calder, 3 U.S. (3 Dall.) at 387-88. [FN201]. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405- 07 (1819); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). [FN202]. McCulloch, 17 U.S. (4 Wheat.) at 407-08. [FN203]. Id. at 407-08, 415 (emphasis added). [FN204]. Id. at 415. [FN205]. Id. at 407. [FN206]. R. BERGER, supra note 187, at 375. Berger suggests, however, that read in context, Marshall may not have claimed the 'revisory power' that later jurists have attributed to him. Id. Specifically, he relied on Marshall's pseudonymous defense of McCulloch in his press debate with Judges Spencer Roane and William Brockenbrough of Virginia, in which Marshall denied that the judicial decisions in cases arising under the Constitution authorized the federal courts 'to change that instrument.' Id. at 376-77 (quoting JOHN MARSHALL'S DEFENSE OF McCULLOCH v. MARYLAND 209 (G. Gunther ed. 1969)). For Chief Justice Marshall, as discussed below, employing a principle of liberal, flexible interpretation that was embedded in the very nature of the document did not involve a license to change the document, only to interpret and enforce it. [FN207]. 17 U.S. (4 Wheat.) at 405-07 (emphasis added). [FN208]. See supra note 192 and accompanying text.
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[FN209]. For an excellent discussion of Darwin's influence on late nineteenth-and early twentieth-century jurisprudence, see Hovenkamp, Evolutionary Models of Jurisprudence, 64 TEX. L. REV. 645 (1985). Professor Hovenkamp notes that late nineteenth-century Darwinian thought produced at least two evolutionary based trends in American jurisprudence. First, the Social Darwinists, taking their cue from both pre- and post-Darwin evolutionary traditions, including Herbert Spencer's Social Statics (1851), treated government as an evil that interfered with the natural evolution of human society. See id. at 664. They set as their goal minimal governmental interference in the economic and social affairs of the policy and found a sympathetic ear in the Supreme Court in Lochner v. New York, 198 U.S. 45 (1905). See Hovenkamp, supra, at 667. Second, the Reform Darwinists, taking their lead from the social evolutionary theories of Lester Frank Ward in Dynamic Sociology (1883), recognized that man alone among the species was conscious of his evolution and could use government as a positive tool to shape and mold evolutionary forces. See id. at 671-72. This body of thought led naturally into the legal realist and pragmatic instrumentalist jurisprudence that characterized the twentieth century. See generally Lyons, Legal Formalism and Instrumentalism--A Pathological Study, 66 CORNELL L. REV. 949 (1981); Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought--A Synthesis and Critique of Our Dominant General Theory About Law and Its Use, 66 CORNELL L. REV. 861 (1981). [FN210]. 252 U.S. 416 (1920). [FN211]. Id. at 433. [FN212]. O. W. HOLMES, THE COMMON LAW (1923). [FN213]. Id. at 1. [FN214]. 343 U.S. 579 (1952). [FN215]. R. BERGER, supra note 187, at 384 (quoting Youngstown, 343 U.S. at 610-11 (Frankfurter, J., concurring)). [FN216]. 343 U.S. at 610. [FN217]. Nelson, History and Neutrality in Constitutional Adjudication, 72 VA. L. REV. 1237 (1986). [FN218]. Id. at 1243. [FN219]. W. HEISENBERG, THE PHYSICAL PRINCIPLES OF THE QUANTUM THEORY 3, 62-63 (1930). [FN220]. Nelson, supra note 217, at 1243. [FN221]. Id. at 1244 (emphasis added). [FN222]. Id. at 1246. [FN223]. Id. at 1248-49. [FN224]. Id. [FN225]. Id. at 1256. [FN226]. Id. at 1268-69. As Nelson puts it, 'A neutral judge examines not the history of a constitutional text's adoption, but the history of the concepts in that text, as they have been understood since its adoption.' Id. at 1268. [FN227]. See infra text accompanying notes 382-415. [FN228]. See Soifer, Protecting Civil Rights: A Critique of Raoul Berger's History, 54 N.Y.U. L. REV. 651, 654 (1979); see also Murphy, Book Review, 87 YALE L.J. 1752, 1760 (1978). [FN229]. See supra notes 19-216 and accompanying text. [FN230]. See Brest, supra note 4; see also supra note 4 and accompanying text.
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[FN231]. See Brest, supra note 4, at 218-22. [FN232]. See generally R. COLLINGWOOD, THE IDEA OF HISTORY (1946). [FN233]. See generally O. HANDLIN, TRUTH IN HISTORY (1979). [FN234]. See generally J. HEXTER, THE HISTORY PRIMER (1971). [FN235]. Nelson, supra note 217, at 1247 (footnote omitted). [FN236]. Id. at 1247. [FN237]. R. COLLINGWOOD, supra note 232, at 268. [FN238]. Nelson, supra note 217, at 1250-51. [FN239]. Id. at 1251. [FN240]. Id. at 1250-51. [FN241]. Id. at 1250. [FN242]. Id. at 1247. [FN243]. See, e.g., F. JENNINGS, THE INVASION OF AMERICA 14 (1975). [FN244]. U.S. CONST. art. I, 8, cl. 12. [FN245]. Id. at cl. 13. [FN246]. Id. at cl. 14. [FN247]. R. DWORKIN, TAKING RIGHTS SERIOUSLY 134-36, 226 (1977). [FN248]. 462 U.S. 919 (1983). [FN249]. Id. at 923, 945-59. [FN250]. Id. at 944-45. The opinion cites Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 IND. L. REV. 323, 324 (1977). [FN251]. See supra notes 41-43 and accompanying text. [FN252]. Chadha, 462 U.S. at 948-51 (discussing framers' concern that members of both houses of Congress concur in all laws). [FN253]. Id. at 946-48 (discussing drafters' efforts to assure that presentment requirement not be circumvented). [FN254]. Unfortunately, the Chadha Court did not rely upon original understanding or carefully analyzed the more interesting question in the case-- the precise parameters of the legislative questions to which the bicameralism and presentment requirements apply. While not the case in Chadha, a number of one-house veto arrangements operate not to change the legal status quo, but to preserve the status quo by preventing any new law or policy from being implemented until Congress acts. See, e.g., 28 U.S.C. 2076 (1982) (either house of Congress may disapprove proposed amendments by Supreme Court to Federal Rules of Evidence); Federal Nonnuclear Energy Research and Development Act of 1974, 42 U.S.C. 5911 (1982) (either house may disapprove proposed rules or orders of President relating to acquisition or allocation of certain materials and equipment). In these circumstances, Congress is not passing a 'law,' but is functionally doing precisely what one house of Congress can always accomplish--preventing passage of a new law or policy. Application of Chadha to these circumstances seems to be clearly contemplated by the opinion, see 462 U.S. at 953 n.16, and raises greater questions about the scope of the original understanding and the extent to which Chadha was the
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product of that original understanding analysis. [FN255]. 277 U.S. 438 (1928). [FN256]. See id. at 455. Significantly, Chief Justice Taft's opinion for the majority in Olmstead made no use of originalis history. Instead, Taft relied upon precedent to establish that the fourth amendment protections were chiefly protections of privacy in the home. He concluded: By the invention of the telephone, fifty years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant's home or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched. Id. at 465. [FN257]. 347 U.S. 483 (1954). [FN258]. Brown v. Board of Educ., 345 U.S. 972, 972 (1953). [FN259]. Brown, 347 U.S. at 489. [FN260]. Id. at 489-90. [FN261]. Id. at 490 n.4. [FN262]. CONG. GLOBE, 39th Cong., 1st Sess. 1117 (1866) (Rep. James Wilson of Iowa). [FN263]. Id. at 1290-93. As proposed, 1 of the Civil Rights Bill of 1866 provided in part: That there shall be no discrimination in civil rights or immunities . . . on account of race . . . but the inhabitants of every race . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment . . . and to none other. Id. at 474. It has been suggested that Bingham objected to the 'no discrimination' clause because of concerns about its constitutionality rather than from any desire to preserve the discriminatory status quo. See R. KLUGER, SIMPLE JUSTICE 641 (1976). But see R. BERGER, supra note 187, at 121 (criticizing this explanation of Bingham's statements). This argument presumes that Bingham proposed the fourteenth amendment to increase congressional power, which suggests that the amendment was designed to facilitate the abrogation of racial discrimination in civil rights or immunities. [FN264]. Letter from Alexander Bickel to Justice Frankfurter (August 1953), quoted in R. BERGER, supra note 187, at 118. [FN265]. See, e.g., supra note 263 (suggesting historically based alternative explanation for Bingham's attack on 'no discrimination' clause of 1866 Civil Rights Bill). [FN266]. CONG. GLOBE, supra note 262, at 708-09; see R. BERGER, supra note 187, at 123-24; Kelley, The Fourteenth Amendment Reconsidered: The Segregation Question, 54 MICH. L. REV. 1049, 1085 (1956). [FN267]. R. BERGER, supra note 187, at 123 (quoting R. KLUGER, SIMPLE JUSTICE 635 (1976)). [FN268]. Those who attack the originalist school of constitutional interpretation also have voiced a separate set of methodological concerns about the discoverability of the original 'intent' of institutional multimember assemblies such as the Constitutional Convention or the state ratification conventions. This concern is certainly not new, having been voiced by Madison as early as 1796 with reference to originalist interpretations of the Constitution during the debates over the Jay Treaty. See 5 ANNALS OF CONG. 487-95 (1796). In his attack on the originalist methodology, Paul Brest nicely summarizes this constellation of methodological concerns. Brest, supra note 4, at 212- 17. He argues that ascertaining institutional intent poses difficult, possibly insurmountable methodological problems. First, the delegates who vote for a particular proposal may 'have contradictory intentions concerning its application.' Id. at 212. Second, since it never occurs that all members of the decisionmaking body affirmatively state the reasons for their votes, one is totally unable to assess the true reasons for the passage of the
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measure--what Brest calls the 'intention-votes' of the adopters. Id. at 213. Third, the failure of some to express their true intentions during the course of debate casts doubt on other votes, 'for in some sense nobody knew precisely what issue was being voted on.' Id. at 213 n.32. Fourth, some of the intention-votes, possibly including the decisive votes, may be the product of political compromise on issues extraneous to the question subject to debate. Id. Finally, in the case of the Constitution, the problem of ascertaining the intent of the 'adopters' is exacerbated by the difficulty, noted in supra notes 107-18 and accompanying text, of securing agreement on precisely which decisionmaking universe constituted the relevant interpretive community of 'adopters'--the Philadelphia Convention, the state ratification conventions, or the People of the United States at the time of ratification--and by the observation that as the document progressed through each stage 'the amount of thought given to each provision surely diminishes.' Id. at 214-15. This Essay has not probed these methodological concerns in depth because they seem to proceed from two fundamentally misplaced positions. First, this constellation of methodological concerns appears to assume that the goal of originalist interpretation is to ascertain the subjective original intent of the adopters rather than an objectively derived original meaning. Yet many intentionalists profess no such subjectivist approach, either because they believe in originalist textualism or because they recognize the existence of certain shared legislative conventions that require decisionmakers to express their concerns. Assumptions about the necessity of express legislative statements can legitimately emerge because of the norms and conventions of legislative debate and the political dynamics of such debate, or because of conventions, which did not exist in the late nineteenth century, about the necessity of such expression for the concerns to be taken into account in the interpretive process. Yet, as argued in supra note 4, the differences between subjective and objective approaches neither accurately depict the line that separates originalists from nonoriginalists nor remain viable upon close analysis. Second, since the premise of these methodological concerns appears to be the absolute undiscoverability of the intent of a multimember body, these arguments try to prove a point so antithetical to our conventional interpretive approaches that it must be rejected as atypical. In the area of statutory construction, the interpretive conventions require, in part, that statutes be interpreted according to the intent of the legislative body that passed them. See, e.g., Philbrook v. Glodgett, 421 U.S. 707, 713-19 (1975) (looking to legislative history of Aid to Dependent Children program to determine that state's denial of benefits to children whose fathers were eligible for unemployment compensation but did not collect it impermissibly conflicted with congressional intent); Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 210 (1962) (citing 'overwhelming' evidence of congressional intent that Taft-Hartley Act grant of jurisdiction to federal courts over suits between employers and unions did not impliedly repeal Norris-LaGuardia Act's bar against injunctions); Atkins v. Disintegrating Co., 85 U.S. (18 Wall.) 272, 303 (1873) (reading entire series of related statutes in pari materia in construing act of Congress to give federal courts in personam jurisdiction over maritime suits); Wilson v. Rousseau, 45 U.S. (4 How.) 646, 678 (1846) (looking at overall congressional intent of patent law to protect patentees and not assignees of patents); United States v. Freeman, 44 U.S. (3 How.) 556, 564-68 (1845) (looking at subsequent acts in same subject matter to determine congressional intent that earlier act did not grant extra pay and rations to marine field officers who command own separate posts); Postmaster General v. Early, 25 U.S. (12 Wheat) 136, 152 (1827) (analyzing words of overall legislation to discern congressional intent in ambiguous phrase of act to give postmaster authority to accept bonds from deputies conditioned on payment over of money received fro postage). The nonoriginalists' denial of the discoverability of any such institutional intent therefore attacks the fundamental interpretive assumptions made by the judiciary in areas far beyond constitutional interpretation. Certainly, one cannot reject originalism in constitutional interpretation on such bases and yet assert a principled argument for its retention in the area of statutory interpretation. Until a fundamental rethinking of all interpretive conventions is undertaken, this particular set of concerns therefore must be rjected as simply proving too much. [FN269]. See, e.g., Bowles, On Using the Proper Tympani in the Performance of Baroque Music, 2 J. AM. MUSICAL INSTRUMENT SOC'Y 56, 56-57 (1976); Donington, The Choice of Instruments in Baroque Music, 1 EARLY MUSIC 131, 138 (1973). [FN270]. In a review of Laurence Tribe's book Constitutional Choices, Professor H. Jefferson Powell noted that 'Tribe repeatedly demonstrates that the decisions of the Burger Court often were presented with a textual or doctrinal formalism that obscured, perhaps even to the Justices themselves, the extent to which the Court's actions reflect unarticulated decisions promoting certain values and discounting others.' Powell, Book Review, 80 NW. U.L. REV. 1128, 1130 & n.18 (1986) (footnote citing examples); see generally L. TRIBE, CONSTITUTIONAL CHOICES (1985). [FN271]. See R. BERGER, supra note 187, at 363-73. [FN272]. See generally R. POSNER, ECONOMIC ANALYSIS OF LAW (2d ed. 1973). [FN273]. See J. SILK, THE BIG BANG 6, 94-99 (1980). See generally THE BIG BANG AND GEORGES LEMAITRE
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(A. Berger ed. 1984). [FN274]. See Silk, supra note 273, at 6, 94-99. [FN275]. 17 U.S. (4 Wheat. 316, 406-08 (1819). [FN276]. See S. PADOVER, TO SECURE THESE BLESSINGS 15-16 (1970); C. ROSSITER, 1787: THE GRAND CONVENTION 41-57 (1966); C. WARREN, THE MAKING OF THE CONSTITUTION 1-54 (1937). [FN277]. THE FEDERALIST NO. 42, at 284-85 (J. Madison) (J. Cooke ed. 1961). [FN278]. Speaking for Virginia on May 29, 1787, Edmund Randolph opened the Convention debates by introducing fifteen propositions outlining his plan of government. After two weeks of debate and amendment, Randolph's Virginia Plan was reported out of committee. Since the Plan provided for proportional representation in both houses of Congress, the small states opposed it and through William Paterson of New Jersey moved for a recess to prepare a plan of their own. Paterson's New Jersey Plan, calling for amendments to the Articles of Confederation, rather than formation of a new government, was reported to the Convention on June 15. After only four days of debate, the Convention rejected this plan and continued discussion on Randolph's Virginia Plan. S. PADOVER, supra note 276, at 27-28. [FN279]. The rules of the Convention called for voting by states, not delegates--a legacy of the voting pattern in the Continental Congress under the Articles of Confederation. 1 RECORDS, supra note 33, at 8. All questions were decided by 'the greater number of these [states] which shall be fully represented.' Id. [FN280]. Id. at 20-23. [FN281]. Id. at 33. [FN282]. Id. [FN283]. Id. at 33-34. [FN284]. Other nationalists later made clear that they were not discussing the abolition of state governments, but their subservience. George Mason, for example, later opposed efforts by John Lansing of New York to continue the confederation structure of the Articles, while simultaneously assuring his concerned colleague: [N]otwithstanding his solicitude to establish a national Government, he never would agree to abolish the State Govts. or render them absolutely insignificant. They were as necessary as the Genl. Govt. and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. Id. at 340. [FN285]. Id. at 34. [FN286]. Id. [FN287]. Id. at 34-35 (emphasis added). [FN288]. Article XIII of the Articles of Confederation provided that any alteration in the Articles must be 'agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.' Since the Philadelphia Convention was called to propose to Congress amendments to the Articles of Confederation, and since neither Rhode Island not New York were represented by full delegations for much of the Convention, concerns about the political feasibility of securing ratification of amendments to the Articles proposed by the Convention were well founded. [FN289]. 1 RECORDS, supra note 33, at 336. [FN290]. For records of the heated debate on this issue, see id. at 130- 208. [FN291]. Id. at 178, 182. [FN292]. Id. at 180.
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[FN293]. Id. at 192-93. An amendment to have the second branch apportioned so that each state had one vote failed on a 5-6 vote. Id. at 193. At this point the Convention adopted a standard of popular apportionment for both houses of Congress by a 6-5 vote. Id. [FN294]. Id. at 197, 450-52. [FN295]. Id. at 467. [FN296]. Id. at 324. [FN297]. Id. Yates' report of Wilson's speech also suggests that he declared himself in favor of 'taking a new departure' by creating a 'national government.' Id. at 328. Wilson, however, recognized that the national government would continue to be a federal government since '[a] general government, over a great extent of territory, must in a few years make subordinate jurisdictions.' Id. Thus, he contemplated the continued existence of the states as mere subordinate divisions of national authority--a far cry from the small state delegates' plea for recognition and protection of separate state sovereignty. [FN298]. Id. at 444-508. [FN299]. Id. at 509-20. [FN300]. Id. at 509, 519-20. [FN301]. Id. at 526. [FN302]. 2 id. at 84-85. [FN303]. Id. at 5, 84-85. [FN304]. ARTS. OF CONFEDERATION art. XIII provided: [T]he Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state. Id.; see also supra note 288. [FN305]. U.S. CONST. preamble. [FN306]. 17 U.S. (4 Wheat.) 316, 402-05 (1819). [FN307]. See supra text accompanying note 286. [FN308]. 1 RECORDS, supra note 33, at 22. [FN309]. Id. at 122. [FN310]. Id. at 122-23. [FN311]. Id. at 242-45. [FN312]. Id. [FN313]. Id. at 287. [FN314]. Id. at 314-15. [FN315]. Id. at 316. [FN316]. Id.
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[FN317]. Id. at 312-13. [FN318]. Id. at 316. Proponents of the compact theory of the Constitution frequently point to the subsequently proposed and ratified tenth amendment as the source of their constitutional argument. Giving full credence to that argument would overthrow the fundamental theory on which the Constitution is based--a somewhat startling, but all too readily accepted, proposition. Nevertheless, as Chief Justice Marshall pointed out in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406-08 (1819), the tenth amendment was deliberately phrased to avoid any such construction in light of the problems that had existed under the Articles of Confederation. In finding that, unlike the Articles of Confederation, nothing in the Constitution excluded implied powers, Marshall noted that the tenth amendment contained no reference to express delegations of power and merely declared that powers 'not delegated to the United States, nor prohibited to the states are reserved to the states or to the people.' Id. at 406. He concluded that the drafters probably omitted the word 'expressly' to avoid the 'embarrassments' that word had caused under the Articles. Id. at 406-07. For rejections of attempts to insert the word 'expressly' into the tenth amendment, see 1 ANNALS OF CONG. 761, 767-68 (J. Gales ed. 1789); 5 ROOTS OF THE BILL OF RIGHTS 1150-51 (B. Schwartz ed. 1980). [FN319]. 3 RECORDS, supra note 33, at 129. [FN320]. Id. at 131-32. [FN321]. DOCUMENTS OF AMERICAN HISTORY 178 (H. Commager 7th ed. 1963) (emphasis added). [FN322]. See infra note 402 and accompanying text. [FN323]. U.S. CONST. amend. IX. [FN324]. See generally Berger, The Ninth Amendment, 66 CORNELL L. REV. 1 (1980); Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223 (1983). [FN325]. See generally B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT (1955); Kelsey, The Ninth Amendment of the Federal Constitution, 11 IND. L. J. 309 (1936) (earlier commentary on ninth amendment); Redlich, Are There 'Certain Rights . . . Retained by the People'?, 37 N.Y.U. L. REV. 787 (1962). [FN326]. 381 U.S. 479 (1965) (striking down state laws prohibiting sale or distribution of contraceptives on constitutional privacy grounds). [FN327]. 410 U.S. 113 (1973). [FN328]. Griswold, 381 U.S. at 484. [FN329]. Id. at 492 (Goldberg, J., concurring). [FN330]. Id. at 520 (Black, J., dissenting). [FN331]. Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 23-24 (1980). Elsewhere, the author has argued that Berger's approach to the ninth amendment misperceives or misstates the manner in which the framers viewed the respective functions of the Bill of Rights and the federal judiciary. Linton, Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society, 67 IOWA L. REV. 711, 731 n.50 (1982). The core of the argument is that the framers of the Constitution contemplated the creation of judicially enforceable limitations on the federal government and that the Bill of Rights, including the ninth amendment, constituted just such a limitation. Berger seemingly accepted at least the major premise of this thesis in his book Congress v. The Supreme Court (1969). The argument further suggests that the framers of the Bill of Rights were primarily concerned about limiting federal legislative initiatives, not the actions of the federal government as a whole. See Clinton, supra, at 730-31. Thus, for example, the first amendment begins, 'Congress shall make no law . . ..' U.S. CONST. amend. I. [FN332]. 2 RECORDS, supra note 33, at 582, 587-88. The proposal inspired very little debate, most of which seemed bound up with the discussion of the lack of a civil jury trial guarantee. See id. at 587, 633, 640. Two delegates, Mason of Virginia and Gery of Massachusetts, specifically refused to sign the document, in part because of the lack of a bill of rights. 3 id. at 128, 135-36.
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[FN333]. 3 id. at 43-44. [FN334]. Id. at 256. [FN335]. 77 Eng. Rep. 638 (C.P. 1610). [FN336]. Id. at 652. [FN337]. The Declaration of Independence para. 2 (U.S. 1776). [FN338]. See generally J. LOCKE, Second Treatise on Government, in TWO TREATISES OF GOVERNMENT (P. Laslett 2d ed. rev. 1970) (3d ed. 1698). [FN339]. Thus, in the Declaration of Independence Jefferson justified the break with Great Britain by declaring: That whenever any Form of Government becomes destructive of these [natural rights] ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and orgamizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. The Declaration of Independence para. 2 (U.S. 1776). [FN340]. See G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776 -1787, at 453-63, 532-43, 546-47 (1969) (discussing nontions of popular sovereignty and natural rights). [FN341]. 1 PENNSYLVANIA AND THE FEDERAL CONSTITUTION, 1787-88, at 341 (J. McMasters & F. Stone eds. 1888, reprint 1970) (emphasis added). [FN342]. See supra note 199 and accompanying text. [FN343]. 3 U.S. (3 Dall.) 386 (1798). [FN344]. See id. at 387-88. [FN345]. See Griswold v. Connecticut, 381 U.S. 479, 519-20 (Black, J., dissenting); cf. Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 2 (1980). [FN346]. This point is the central focus of Raoul Berger's book, Government by Judiciary (1977). [FN347]. Justice John Marshall Harlan was one of the leading opponents of the incorporation doctrine. Harlan maintained: It is time, I submit, for this Court to face up to the reality implicit in today's holding and reconsider the 'incorporation' doctrine before its leveling tendencies further retard development in the field of criminal procedure by stifling flexibility in the State and by discarding the possibility of federal leadership by example. Williams v. Florida, 399 U.S. 78, 138 (1970) (Harlan, J., concurring); see also Baldwin v. New York, 399 U.S. 66, 138 (1969) (Harlan, J., dissenting); Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5, 137 (1949); Yarbrough, Justice Black, the Fourteenth Amendment, and Incorporation, 30 U. MIAMI L. REV. 231, 261-66 (1976). [FN348]. See Adamson v. California, 332 U.S. 46, 92-123 (1947) (Black, J., dissenting). [FN349]. See generally Fairman, supra note 347. [FN350]. Nelson, supra note 181, at 1253-54; see J. TENBROEK, EQUAL UNDER LAW 238-39 (1965); Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1, 5 n.13 (1955); Mendelson, Mr. Justice Black's Fourteenth Amendment, 53 MINN. L. REV. 711, 712 (1969); Mykkeltvedt, Justice Black and the Intentions of the Framers of the Fourteenth Amendment's First Section: The Bill of Rights and the States, 20 MERCER L. REV. 432, 433-34 (1969). Nelson notes that more recent scholarship has cast serious doubt on Fiarman's conclusions. Thus, contemporary commentators have given greater credence to Justice Black's portrayal of the original understanding of the fourteenth amendment. See M. CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 216-20 (1986); Yarbrough, supra note 347, at 275.
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[FN351]. 32 U.S. (7 Pet.) 243 (1833). [FN352]. Bingham argued: A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment. Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the Fifth article of the amendments to the Constitution are [sic] binding upon the State of Maryland and to be enforced in the Federal courts. [Bingham here quotes Chief Justice Marshall's opinion in Barron, which concluded that 'the fifth amendment must be understood as restating the power of the General Government, not as applicable to the States.' Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833).] I read one further decision on on this subject--the case of the Lessee of Livingston vs. Moore and others . . .. [In Livingston's Lesee, the Court said that it was settled 'that those amendments do not extend to the States . . ..' Livingston's Lessee v. Moore, 32 U.S. (7 Pet.) 469, 551 (1833).] CONG. GLOBE, 39th Cong., 1st Sess. 1089-90 (1866) (emphasis added). [FN353]. See id. [FN354]. Id. at 1088-89. [FN355]. CONG. GLOBE, 42d Cong., 1st Sess. 84 app. (1871). Bingham went on to allude to the inequity of Barron that he had meant to correct through the privileges and immunities clause: The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws; because all State officials are by the Constitution required to be bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. They denied trial by jury, and he had no remedy. They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. . . . Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in States and by States, or combinations of persons? Id. at 85 app. [FN356]. See Chicago B.& Q.R.R. v. Chicago, 166 U.S. 226, 241 (1897). [FN357]. See Fairman, supra note 347, at 81-126. [FN358]. See Llewellyn, The Constitution as an Institution, 34 COLM. L. REV. 1 (1934). [FN359]. See id. at 17-18. [FN360]. Id. at 17. Llewellyn continued: Every living constitution is an institution; it lives only so far as that is true. And the difference between a 'written' and an 'unwritten' constitution lies only in the fact that the shape of action in the former case is somewhat influenced by the presence of a particular document, and of particular attitudes toward it, and particular ways of dealing with its language. Id. at 17-18. [FN361]. Id. at 39. [FN362]. See Lerner, Constitution and Court as Symbols, 46 YALE L.J. 1290 (1937). [FN363]. Id. at 1292. [FN364]. See id. at 1292-1305. [FN365]. Id. at 1312.
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[FN366]. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); United States v. Butler, 297 U.S. 1 (1936); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). [FN367]. See supra note 366; see also Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 L. & HIST. REV. 293 (1985); Collier, Judicial Bootstraps and the General Welfare Clause, 4 GEO. WASH. L. REV. 211, 211-212 (1935-36); Corwin, The Schechter Case--Landmark, or What?, 13 N.Y.U. L. REV. 151, 153-54, 189 (1936). [FN368]. 297 U.S. 1 (1936). [FN369]. Id. at 62-63. [FN370]. Llewellyn, supra note 358, at 1. [FN371]. See supra text accompanying note 361. [FN372]. See Johnson v. Transportation Agency, 107 S. Ct. 1442, 1459 (1987) (Stevens, J., concurring) ('There is an undoubted public interest in 'sability and orderly development of the law.'' (quoting Runyon v. McCray, 427 U.S. 160, 190 (1976) (Stevens, J., concurring))). [FN373]. HTE FEDERALIST NO. 49, at 338-43 (J. Madison) (J. Cooke ed. 1961). [FN374]. Madison never refers to his friend Jefferson by name. Rather, he begins the essay by referring to the uthor of Notes from a Virginia Farmer-- Thomas Jefferson. [FN375]. THE FEDERALIST NO. 49, at 339 (J. Madison) (J. Cooke ed. 1961). [FN376]. Id. at 340. [FN377]. Id. [FN378]. Id. at 340-41. [FN379]. Commager, Historical Background of the Fourteenth Amendment, in THE FOURTEENTH AMENDMENT 14, 18 (B. Schwartz ed. 1970). [FN380]. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819). [FN381]. THE FEDERALIST NO. 49, at 338-43 (J. Madison) (J. Cooke ed. 1961). [FN382]. M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS 20 n.* (1982). While drawing this important distinction, Perry does remarkably little to elaborate upon its theoretical significance. [FN383]. U.S. CONST. art. V provides: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Id. [FN384]. See U.S. CONST. amends. XI, XIV, XXI, XXVI; see also Oregon v. Mitchell, 400 U.S. 112 (1970) (decision that Congress did not have power to set voting age in state elections later overturned by twenty-sixth amendment); Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (opinion rejecting unapportioned federal income tax later overturned by sixteenth amendment), aff'd on reh., 158 U.S. 601 (1895); Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (decision that slaves and their descendants could never become citizens of United States later overturned by fourteenth
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amendment); Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 242 (1833) (ruling that Bill of Rights did not apply to states later overturned by fourteenth amendment); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) (opinion stating that Supreme Court had jurisdiction over cases in which state is party later overturned by eleventh amendment). [FN385]. For a discussion of the methodological significance of this question, see supra notes 4, 217-68 and accompanying text. [FN386]. For a detailed methodological discussion of the reasons for demanding affirmative evidence, see supra notes 267-68 and accompanying text. For other discussion of the impossibility of using 'arguments from silence' to historically prove original understanding, see Powell, Rules for Originalists, supra note 3, at 671-72. [FN387]. Ronald Dworkin draws distinctions between types of constitutional clauses, arguing that those clauses containing concepts, such as cruelty and equality, should be read differently from those containing specific conceptions. R. DWORKIN, supra note 247, at 134-36. Dworkin illustrates his point with an analogy to a situation when a parent instructs his child not to treat others unfairly. Although at the time that parent probably has specific instances of conduct in mind, he would reject the notion that the meaning of his instruction was limited to those specific instances of conduct. Here, fairness is intended to be a concept or standard to guide the child in many future situations, including those unforeseen. Consequently, since no specific conception of fairness is given to the child, the child must use his or her own conception of fairness to meet the standard. See id. [FN388]. For a discussion of the descriptivist perspective and its importance to original understanding research, see supra notes 217-68 and accompanying text. [FN389]. See supra notes 220-27 and accompanying text. [FN390]. See supra note 4. [FN391]. See supra notes 69-119 and accompanying text. [FN392]. In some instances the choices are broader. For example, most of the Bill of Rights provisions were proposed by the state conventions that ratified the Constitution, sometimes phrased as conditions of effective ratification. Therefore, to find the historical roots of these guarantees, it is also logical to consult the state ratification debates and the state bills of rights upon which speakers in many of those debates rested their arguments. [FN393]. In a previous article, the author has stated his sympathy with Madison's view that constructions imposed on the Constitution by federalists during the ratification debates are entitled to at least the same interpretive weight as those expressed at the Philadelphia Convention. See Clinton, supra note 4, at 837-40. The author also has suggested that interpretive reliance on the actions of, and debates in, the First Congress is misplaced due to the greater representation of antifederalist forces in the Senate and the lack of extensive representation in the First Congess of ardent nationalists like James Wilson and Alexander Hamilton, who had been instrumental in drafting and securing ratification of the Constitution. See Clinton, A Mandatory View of Federal Jurisdiction: Early Implementation of and Departures from the Constitutional Plan, 86 COLUM. L. REV. 1515, 1524-27 (1986). [FN394]. It is reasonable to ask how such a result is possible if descriptivist historical methodologies establish as their goal a single correct reading of past history. The answer lies in the fact that in very close cases the paradigm may not be fulfilled. This Essay earlier recognized that personal, subjective judgments necessarily become involved in some descriptivist research. See supra notes 267-68 and accompanying text. The difference between contextualist and descriptivist history is not the presence or absence of contemporary and personal values in the product of the inquiry; rather, it is whether the researcher methodologically seeks to control for the influence of such values on the conclusions. Since the control process invoked by the descriptivist historian, while often quite effective, is never perfect, it is indeed possible for two descriptivist researchers reviewing the same record and employing the same interpretive methodologies to come to different conclusions about original meaning. Of course, as a greater number of researchers study any original understanding question from a descriptivist perspective, there is a greater likelihood that personal, subjective elements of the process will be controlled for by the collective judgments that emerge. [FN395]. See supra notes 41-43, 248-54 and accompanying text. [FN396]. As framed here, this question avoids any presumption for or against a closed-textured construction. While the
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phrasing of the question in Figure 1 might be thought to create a presumption against finding original understanding controlling in the absence of clear affirmative evidence of a closed-textured intent, no such presumption is intended by the author. The question in Figure 1 is framed principally to make it fit logically into the flowchart rather than to create a presumption. [FN397]. This observation about the legitimacy of contraconstitutional interpretation presents some implications that may be at odds with the normative preferences of the interpreter. For example, as much as this author favors and supports the results of the Supreme Court cases over the past fifteen years applying heightened constitutional scrutiny to gender discrimination under the rubric of the equal protection clause of the fourteenth amendment and the due process clause of the fifth amendment, he is quite doubtful, in light of his analysis, of the legitimacy of these decisions. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-24 (1982); Kirchberg v. Feenstra, 450 U.S. 455, 459 (1981); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980); Califano v. Goldfarb, 430 U.S. 199, 210-12 (1977); Craig v. Boren, 429 U.S. 190, 197-99 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975); Frontiero v. Richardson, 411 U.S. 677, 682 (1973). The text of the fourteenth amendment expressly contemplates overt gender classifications that disadvantage women. Section 2 of the amendment provides that only men will vote, by only sanctioning the denial of the franchise to any 'male inhabitants of such State, being twenty-one years of age, and citizens of the United States [who have not] participa[ted] in rebellion, or other crime.' U.S. CONST. amend. XIV, 2 (emphasis added). In light of the language of 2, one can reasonably hypothesize that close historical analysis of the background of the fourteenth amendment might reveal affirmative evidence that the adopters clearly contemplated the continuation of gender-based legal classifications that disadvantaged women in contexts other than the franchise. Assuming arguendo that such affirmative, historical evidence can be mustered, serious legitimacy problems arise for the gender classification cases. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court used 2 of the fourteenth amendment to conclude that the equal protection clause did not originally prohibit and could not be interpreted to prohibit the denial of the franchise to convicted felons since such classifications were expressly contemplated in 2. Id. at 54-55. Evenhanded application of the Richardson originalist approach suggests that the recent gender discrimination cases under the fourteenth amendment involve an illegitimate contraconstitutional exercise of judicial interpretive authority. Pragmatists unconcerned with niceties of constitutional procedure might object that, in light of the failure of the proposed Equal Rights Amendment, the type of nonoriginalist interpretation involved in the gender discrimination cases was the only way to implement the important contemporary normative judgments against gender-based discriminations. This concern can be answered in two quite different ways. First, reliance on constitutional rather than statutory solutions to implement this normative judgment neither fully addresses the entire problem--since it does not reach conduct not supported by the requisite governmental action necessary to satisfy the fourteenth or fifth amendments--nor pays appropriate attention to the more important instrumentalist value of constitutional stability emphasized in this Essay. Second, the argument takes the actual failure of the Equal Rights Amendment as a preordained historical fact. The body of jurisprudence under the equal protection clause subjecting gender-based discrimination to heightened constitutional scrutiny developed simultaneously with the ratification debate over the ERA, and this development seriously undermined the political effort to secure ratification of the amendment. It permitted opponents of the ERA to portray the amendment as unnecessary and further permitted the debate over the important issues raised by the ERA to degenerate to the level of the ludicrous nonquestion of unisex restrooms. See Ginsburg, The Need for the Equal Rights Amendment, 59 A.B.A. J. 1013, 1018 (1973) ('Rest rooms in public places could not be sex separated. Emphatically not so, according to the amendment's proponents in Congress, who were amused at the focus on the 'potty problem.") (footnote omitted); see also SENATE COMM. ON THE JUDICIARY, EQUAL RIGHTS FOR MEN AND WOMEN, S. REP. NO. 689, 92d Cong., 2d Sess. 12 (1972); Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871, 900-02 (1971). Had the Court not simultaneously indicated its willingness to address gender-based discrimination under the existing equal protection concepts, the need for the ERA would have been more evident and the debate over its ratification might have been kept on a more lofty plane that actually addressed the real issues raised by the proposed amendment. While one can never reconstruct history with certainty, in such a climate the outcome of the effort to ratify the ERA, which was quite close anyway, might have been more favorable. [FN398]. See generally Van Alsytne, Notes on a Bicentennial Constitution: Part II, Antinomial Choices and the Role of the Supreme Court, 72 IOWA L. REV. 1281 (1987). Nonoriginalist textualist theories differ from originalist approaches to textualist interpretation in not asking what the plain words of the document meant when it was adopted. Thus, the nonoriginalist textualist merely asks what the words mean to the interpretive community today, divorced from any historically antecedent meaning. [FN399]. See generally C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).
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Structural arguments can also be used to ascertain original understanding. See supra note 4 and accompanying text. Only when they are used from an ahistorical perspective do they become nonoriginalist arguments. [FN400]. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); J. ELY, DEMOCRACY AND DISTRUST 73-77 (1980). [FN401]. See Trop v. Dulles, 356 U.S. 86, 100-01 (1958). Chief Justice Warren wrote: The basic concept underlying the Eighth Amendment is nothing less than the dignity of man . . . the words of the Amendment are not precise, and . . . their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Id.; see also Miller, The Elusive Search for Values in Constitutional Interpretation, 6 HASTING CONST. L.Q. 487, 500, 508 (1979). [FN402]. See Nelson, History and Neutrality in Constitutional Adjudication, 72 VA. L. REV. 1237, 1268 (1986). These theories are traceable at least back to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), in which Chief Justice Marshall relied on the postadoption debates over creation of the First National Bank of the United States as authoritative precedent to support the creation of the Second National Bank. They also have been the grounds of important constitutional decisions. See, e.g., Sioux Tribe v. United States, 316 U.S. 317, 326-31 (1942) (relying on historical practice of long congressional acquiescence to sustain presidential creation of reservations from public domain notwithstanding Congress' constitutional power to dispose of United States property); United States v. Midwest Oil Co., 236 U.S. 459, 471 (1915) (same). Perhaps the most recent proponents on the Supreme Court of this approach have been Justices White and Frankfurter. In a recent decision Justice White stated: Whether fortunate or unfortunate, at this point in the history of constitutional law that question can no longer be answered by looking only to the constitutional text. This Court's cases construing that text must also be considered. In its attempt to pigeonhole these cases, the plurality does violence to their meaning and creates an artificial structure that itself lacks coherence. Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 94 (1982) (White, J., dissenting). 'Much more relevant to today's decision are, first, the practice in bankruptcy prior to 1978, which neither the majority nor any authoritative case has questioned, and, second, the practice of today's administrative agencies.' Id. at 101 (White, J., dissenting). White continued: Unless we want to overrule a large number of our precedents upholding a variety of Art. I courts--not to speak of those Art. I courts that go by the contemporary name of 'administrative agencies'--this conclusion is inevitable. It is too late to go back that far; too late to return to the simplicity of the principle pronounced in Art. III and defended so vigorously and persuasively by Hamilton in The Federalist Nos. 78-82. Id. at 113 (White, J., dissenting). Justice Frankfurter also supported this approach: In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by 1 of Art. II. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring). [FN403]. See Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 387-91 (1981); Monaghan, Taking Supreme Court Opinions Seriously, 39 MD. L. REV. 1, 12 (1979). [FN404]. See J. THAYER, THE ORIGIN AND SCOPE OF THE AMERICAN DOCTRINE OF CONSTITUTIONAL LAW 18 (1893) ('whatever [legislative] choice is rational is constitutional'); see also T. COOLEY, CONSTITUTIONAL LIMITATIONS 216 (6th ed. 1890) ('A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.'). [FN405]. See supra note 402. [FN406]. Justice White's dissent in Northern Pipeline, 458 U.S. at 92, is predicated on precisely such a premise. Relevant passages from White's dissent are quoted in supra note 402. [FN407]. Justice Brandeis articulated what many consider to be the classic statement on the role of stare decisis in constitutional interpretation: Stare decisis is not . . . a universal, inexorable command. . . . Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . But in cases
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involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-08 (1932) (Brandeis, J., dissenting) (citations and footnotes omitted). For similar views that stare decisis has a more limited role when constitutional interpretation is involved, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 419- 20 (1983); Mitchell v. W. T. Grant Co., 416 U.S. 600, 627 (1974) (Powell, J., concurring); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 93-94 (1936) (Stone and Cardozo, JJ., concurring). Compare those statements with the view of Justice Frankfurter: 'We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us.' Green v. United States, 355 U.S. 184, 215 (1957) (Frankfurter, J., dissenting). [FN408]. See Monaghan, Our Perfect Constitution, supra note 403, at 387-91; Monaghan, Of 'Liberty' and 'Property,' 62 CORNELL L. REV. 405, 424 (1977). [FN409]. In suggesting that the outcome of a court's reasonable originalist inquiry should be legally conclusive as a matter of precedent, the author does not mean that such an interpretation somehow concludes the nonlegal, historical debate about the court's conclusions. Legal and historical scholars remain perfectly free to criticize courts for historical error or to unearth new historical revelations on the subject. The point is simply that after the Supreme Court, or other controlling courts, have once surveyed the historical record, they should not be required to come back to it repeatedly to reinvent the interpretive wheel. Of course, subsequent research may convincingly or conclusively show that a court had its history wrong. When this occurs, the court is just as free to overrule the prior precedent as it is in oter areas less governed by the constraints of history and a written text. In such cases, however, since both a prior review of the historical materials and the instrumentalist values of constitutional finality and predictability are involved, the burden of historical proof presumably must be heavier to unsettle the already settled interpretations of the document than to establish the initial historically based interpretation. [FN410]. See 1 RECORDS, supra note 33, at xv. [FN411]. The early editions of Madison's notes contained in Elliot's Debates are quite poorly indexed. It was not until the publication in 1911 of Max Farrand's famous series of collected papers and debates surrounding the Philadelphia Convention that a quality index for such material became readily available. See generally 4 RECORDS, supra note 33. [FN412]. See supra text accompanying notes 152-76. [FN413]. See supra text accompanying notes 157-70. [FN414]. The author believes, for example, that the interpretation of the exceptions and regulations clause offered in Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), was profoundly inconsistent with the original understanding of article III insofar as it suggested a congressional power to determine and curtail the scope of jurisdiction committed to the article III courts. See id. at 513; see also Clinton, supra note 4, at 846-51; Clinton, supra note 393, at 1601-03, 1617-18. Chief Justice Chase arrived at this interpretation without giving any attention to the history surrounding the drafting and ratification of the document. Indeed, in the McCardle opinion, Chase not only fails to cite any of the then available historical evidence, he even misquotes the Constitution. See Clinton, supra note 393, at 1602. [FN415]. See supra notes 373-78 and accompanying text. [FN416]. See supra notes 385-406 and accompanying text. [FN417]. See supra notes 371-79 and accompanying text. END OF DOCUMENT

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72 IALR 1177 (Cite as: 72 Iowa L. Rev. 1177)

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Copr. West 2004 No Claim to Orig. U.S. Govt. Works

72 IALR 1177 (Cite as: 72 Iowa L. Rev. 1177)

FOR EDUCATIONAL USE ONLY