clinton - original understanding, legal realism

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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 'THISCONSTITUTION'

Robert N. Clinton [FNa]

Copyright 1987 by Robert N. Clinton

Table of Contents

I. Introduction ....................................................... 1179

II. 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

72 IALR 1177 FOR EDUCATIONAL USE ONLY Page 1

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

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


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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 inits modern sense! And that the language of our Constitution is already undergoing interpretations unknown to itsfounders 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 theconstitutional 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 historysurrounding these momentous events to the judicial interpretation of the document that emerged. Indeed, the debate overthe interpretive significance of such constitutional history rapidly is becoming one of the more hotly debatedcontemporary 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 newtopic. Rather, the debate over originalism is almost as old as our current cosntitutional Union. Over the course of 200years, however, a number of important elements have changed, including the disputants, their general level of access toprimary 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 mightmean many different things, in this Essay it will denominate the view that the Constitution or any amendment theretoshould be interpreted as its spirit and language were understood when the relevant provision was drafted rather than inlight of new and different meanings that later generations have created and supplied. [FN4] This definition focuses on theimportance of historiography to *1181 the interpretive process.

*1182 The contemporary debate over originalism has created a deceptive legal and political polarization. On the onehand, many current advocates of legislative ascendancy, judicial conservatism, and self-restraint in constitutionaladjudication, such as former Chief Justice Burger, Judge Bork, and Attorney General Meese, [FN5] have donned themantle of originalism. They have argued, with varying degrees of rigor and sophistication, that the Constitutionlegitimately can be interpreted to mean only what the framers originally intended it to mean in the period 1787-1789when it was drafted, proposed, and ratified. These proponents of originalism also often advocate *1183 a more limitedconstitutional role for the federal government and a protected cosntitutional role for the sovereignty of the states. Forsuch originalists, all constitutional issues must be resolved by resort to the language of the Constitution and theresurrected 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 ofthe particular constitutional clauses in question. For originalists, the very idea of historically insupportable nontextualrights, such as a right of choice in fundamental matters of procreation, contraception, and abortion [FN6] or, possibly, aright of interstate travel or migration, [FN7] constitutes a blatant judicial usurpation of legislative authority and anunwarranted 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 thatrigorously enforces a wide variety of civil liberties against the majoritarian excesses of legislative bodies, have totallyrejected the interpretive significance of originalist history. [FN8] These nonoriginalists often are advocates of a largerrole for the *1184 national government and greater constitutional restraints on the states. The speeches of JusticeBrennan [FN9] or the writings of Paul Brest [FN10] and Thomas Grey [FN11] illustrate his approach. For them, the deadhand of the framers' thoughts in the agrarian, pastoral world of the late eighteenth century simply cannot reach out over200 years of national political, social, and economic development and control the constitutional governance of acomplex, postindustrial late twentieth-century society. The absurdity of originalism answering questions that the framerscould not conceivably have envisioned convinces such nonoriginalists that original understanding on many importantconstitutional 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 todemonstrate that originalism was not intended by the framers [FN13]--an effort to hoist the originalists by their ownpetard. Strangely, this argument seems to violate a position often held by nonoriginalists--that the modern researchercannot definitively discover the collective original understanding of a dimly lit past that can be re-created only through atelescope 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 judicialdiscretion in a postrealist world. Both the natural rights jurisprudence dominant in the era when the Constitution wasdrafted and the analytical postivist or formalist analyses of the late nineteenth and early twentieth centuries assumed thatthe process of judicial determination involved an analytical process that when properly applied could yield but onecorrect answer. Under each perspective, judicial interpretive discretion was inherently limited by the perceived nature ofthe 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 plausibledecisional alternatives and, at least for pragmatic instrumentalists, deliberately choosing the one most conducive to thesocial good. The judge no longer was perceived as merely a neutral discover and enforcer of the law, but as an activeparticipant in the law-making *1185 process. Legal realism focused on the personal elements of the judicial role. Itemphasized judicial discretion. Once the legal realists highlighted the process of the judicial interpretive choice, inquiryand contemporary debate naturally focused on the legitimacy of, and limits on, such choices--the preclude to the currentchorus 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 describedby the legal realist school of thought have seized upon original understanding as both a legitimating and a limitingprinciple. The need for, and significance of, such legitimating principles, however, has been contested forcefully by thosewho 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 thatboth the originalists and nonoriginalists have made excessive, insupportable claims. The originalists are mistaken inthinking that only original understanding can legitimately resolve constitutional interpretive questions, and thenonoriginalists have ignored the cultural significance of the fact that we have a written Constitution and a quite sizablebody 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 todisguise as truth inaccurate depictions of historical facts.

In attempting a reconciliation of pragmatic postrealist thought with the significance of original understanding, the coreidea advanced is the cultural, political, social, and economic improtance of constitutional stability to nationaldevelopment and progress--a fact clearly recognized by the framers, as reflected in Madison's writing in The FederalistNo. 49. [FN16] In short, as Chief Justice Marshall described it, the Constitution was designed to be, and has been, 'aconstitution 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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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 andremonstrances or more informal written broadsides, sometimes published anonymously. [FN29] When the Americancolonists finally broke with England, they again chose the written form to symbolize, commemorate, and legitimate theevent 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 newcentral government rapidly followed suit with the drafting in 1777 and the adoption in 1781 of the nation's first writtenconstitution--the Articles of Confederation. [FN32]

The debates of the Constitutional Convention at Philadelphia reveal that the drafters believed strongly in the power of thewritten word to structure and limit the ongoing operations of government. Although these debates contained no detaileddiscussions of the intended interpretive methodologies, the approach taken during the Convention suggested an effort torefine the text to eliminate vagueness and ambiguity. The Convention began its deliberations by debating generalprinciples 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 governmentand to jettison the Articles of Confederation. [FN33] During this period, Charles Pinckney of South Carolina [FN34] andWilliam Paterson of New Jersey [FN35] also presented proposals to the Convention. After extended debate andamendment of the Randolph proposals and rejection of the less radical, state sovereignty oriented approach proposed bythe small-state delegations in the New Jersey Plan offered by Paterson, the Convention chose to reduce the statement ofgeneral principles in the amended Randolph proposals to a draft document. To do so, the Convention established aCommittee of Detail to transform the statement of general principles contained in the amended Virginia Plan into moreprecise language by preparing a draft of a new constitutional document. [FN36] Long and difficult debates ensued duringwhich the delegates sought collectively to hammer out not only the principles animating the new constitutionaldocument, 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 andarrange the articles' of the Constitution that had been agreed to. This committee went through the document with afine-tooth comb, even pausing to insert a comma in the so-called exceptions and regulations clause to clarify the intendedmeaning. [FN38]

It is difficult to read the debates of the Constitutional Convention without coming to the conclusion that the framers had afinite sense of the meaning of language and that they strove to use language precisely to control the governance of notonly 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 pickedwords quite carefully to convey precisely what they meant, no more and no less. Debates over the connotations ofconstitutional terms reflected a desire to avoid both imprecision and linguistic redundancy. [FN40] In some cases theframers deliberately chose constitutional terminology to create closed-textured phrasing to prevent future linguisticevasions of their intended meaning.

Two small but illustrative examples of such drafting occurred in the alteration of the language of the presentment clauseof article I, section 7, which mandated that all national laws be presented to the President for signature before enteringinto 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 tothe President of the United States for his revision . . ..' [FN41] Some of the framers evidently were very concerned aboutlimiting subsequent legislative efforts to evade the force of the presentment clause by styling new legislation assomething other than a 'bill.' Thus, on August 15, James Madison observed that 'if the negative of the President wasconfined to bills; it would be evaded by acts under the form and name of Resolutions, votes &c.' He proposed that thephrase '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 ofadjournment and in the cases hereinafter mentioned).' [FN43] This seemingly small debate illustrates the framers' viewson originalism because it involves their search for linguistic devices to control the constitutional governance of futuregenerations.

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 includecases 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 theConstitution, & whether it ought not to be limited to cases of a Judiciary Nature.' [FN44] Madison thought that ' t heright 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 thatthe Convention agreed to Johnson's motion, 'it being generally supposed that the jurisdiction given was constructivelylimited to cases of a Judiciary nature.' [FN46] This example, one relied upon by Professor Powell, [FN47] contains a fairamount of ambiguity. Professor Powell, without considering other interpretations, sees the example as evidence that thedelegates at Philadelphia 'clearly assumed that future interpreters would adhere to then-prevalent methods of statutoryconstruction.' [FN48] He therefore assumes that the language meant that the text of the amendment already included aconstructive limitation. Equally plausible, however, is the suggestion that by their debates, the delegates, or at leastMadison, 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 theinterpretive understandings of the delegates. First, the debates over the presentment clause nicely demonstrate ProfessorPowell'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 theframers' 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 remainreasonably constant over time, thereby facilitating the document's ability to shape the constitutional governance of latergenerations. Third, the framers in both instances obviously thought their own sense of the constitutional terms ought tocontrol rather than subsequent legislative rhetorical efforts to reinterpret or evade their efforts. Fourth, in the case of thepresentment clause, the delegates clearly attempted to use rhetorical devices to create a closed-textured constitutionalclause 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 anall-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 thatlater generations could, or would, read into the document. From this illustration, the presentment clause therefore wasnot, to borrow the prosaic phrase of Learned Hand, [FN49] and empty vessel into which later generations were invited topour their favorite vintage wine. The delegates deliverately sought to impart to the clause a meaning with a distinct castand flavor. Finally, the debates over the judiciary article suggest that the delegates may have attempted to engraft someunwritten 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 delegatesprincipally relied on the precision of their language in the constitutional text to impart controlling meaning to theirconstitutional acts, they were not beyond resorting to constructive limitations on their language derived from theirdeliberations.

This discussion also illustrates in microcosm several problems with Professor Powell's thesis. First, Powell's thesis seemsbent on drawing a distinction between subjectivism and objectivism in interpretation, as if this line of demarcationanimated 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 andopponents of originalist interpretation. [FN50] The division between modern originalists and nonoriginalists turns insteadon the question of the interpretive relevance of historical meaning, however derived, as opposed to contemporarymeaning. Thus, some of the evidence Powell cites to refute originalism only refutes certain limited types of subjectivistarguments, while ultimately supporting the cause of originalism by suggesting the importance of originalist textualismduring 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 derivedfrom interpretive devices directed, sometimes from an originalist perspective, toward the language of the constitutionaldocument, rather than through resort to the more modern techniques of historical analysis. This textualist focus of lateeighteenth- and early nineteenth-century interpreters, however, easily can be misunderstood by a twentieth-centuryaudience schooled in linguistic contextualism. This confusion emerges from Powell's equation, noted above, ofhistorically bound subjectivist interpretation with originalism. Thus, he cites evidence to refute the originalist thesissuggesting 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 'publicmeaning' and 'private intent,' [FN52] and seems uncritically to assume that this line coincides with the distinctionbetween originalism and nonoriginalism. This equation is far from clear. Historical originalism can just as easily focus onthe public meaning of text circa 1787-1789 as from the private meaning of the terms. The principal point of theoriginalist critique is to ascertain the meaning at the time the document was drafted, rather than approaching the text inthe late twentieth century from an ahistorical interpretive perspective. An originalist can just as well derive originalunderstanding from the then prevalent public understanding as from the private intentions of the delegates. The importantpoint for the originalist is that the interpretation advanced constitutes an accurate depiction of the understanding, privateor public, when the document was drafted.

The framers' focus on language, however naive it may appear today, apparently assumed that words have a relativelyfixed and unchanging meaning. The meaning of the words as understood by the framers at Philadelphia and in lateeighteenth-century, post-Enlightenment society was to control, subject to subsequent constitutional amendment, ofcourse, not meanings resulting from clever twists of the words by a twentieth-century society bombarded with MadisonAvenue abuses of the Anglo-American language. In that sense, the foregoing debate illustrates certain originalistinterpretive 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 thisconclusion when he notes that, for the framers, original intent meant an interpretive focus on text rather than surroundingevents or the debates at the Philadelphia Convention. Powell phrases his position, however, in a fashion suggesting theempty vessel *1194 approach to the text [FN53]--seemingly ignoring the important interpretive distinction betweenoriginalist textualism and ahistoric textual analysis--rather than suggesting an originalist approach to the text of theconstitutional compact illustrated in these small microcosms of the constitutional debates. While the framers may nothave 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 theappropriate meaning to be imparted to the document. They had no idea that later generations might treat the text as avehicle for imparting more modern and different understandings to their constitutional arrangements. When such effortslater emerged, surviving members of the Philadelphia Convention sometimes protected departures from their own earlierunderstanding 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 contraryevidence 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 theproceedings further confirm this understanding. Under the rules of the Convention, a journal was kept, but the rulesprovided '[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 ofthe 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 themto be put to hostile uses 'by those who would wish to prevent the adoption of the Constitution.' [FN57] James Wilsonopposed destruction, indicating that at one time he had preferred destruction of the records, but had come to favor theirpreservation 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 papersof the Convention be placed in the hands of George Washington, the President of the Convention. When Washington notunreasonably 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 theConstitutional Convention was to facilitate their use in rebutting false suggestions propagated about the document orabout the intent of the framers in its drafting. It also suggests that sensitivity about the publication of the Journals afterthe adjournment of the Convention [FN60] related primarily to concern about their abuse by antifederalist forces inexpected 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 ofhistoriography to rebut 'false suggestions' about the Constitution and the Convention. While this debate illustrates theperceived interpretive relevance, but not conclusiveness, of the debates in the minds of the framers, it is not whollyunambiguous. It is *1196 unclear whether Wilson's comments were addressed only to falsehoods propagated ininterpretive debates during the ratification struggle or to errors propagated in efforts to interpret and enforce thedocument 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 ofWashington subject to the disposition of Congress if that body commenced operation under the document. SinceCongress could not commence operation until after ratification of the document, the concern with preservation of therecords of the Convention to rebut falsehoods must have centered on their value in later discerning constitutional textualmeaning, or possibly in shedding light on the historical events at the Convention, rather than on their use in theratification struggles.

Statements by framers during the ratification of the Constitution and subsequent interpretation of the document indicatethat many of those who attended the Philadelphia Convention and the later state ratification conventions believed in partin an originalist approach, albeit not necessarily a historiographic approach, to the interpretation of the text they haddrafted. Perhaps most telling is the statement by James Madison that begins this Essay. Madison's commentssimultaneously indicate an expectation that the text of the Constitution would be read consistently with interpretationsknown to its founders, and a frustration that those interpreting the document were taking 'its ancient phraseology . . . intheir modern sense.' [FN62]

Similar statements are peppered throughout the writings of important framers in the first years of national experienceunder 'this Constitution.' In response to claims by antifederalists that the express protection of criminal jury trial in articleIII in fact abolished civil jury trials under the statutory maxim of expressio unius est exclusio alterius, AlexanderHamilton 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 havebeen quoted, is contrary to reason and common sense, and therefore not admissible. Even if these maxims had a precisetechnical sense, corresponding with the ideas of those who employ them upon the present occasion, which, however, isnot the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural andobvious 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, theirfaith did not rest on text alone. Madison concluded The Federalist No. 48, in which he expounded his *1197 theory forthe connecting and blending of the separate branches of government, by stating 'that a mere demarkation on parchment ofthe 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 onrhetorical devices was not exclusive; they deliberately relied upon structural arrangements involving both separation andblending 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 theirrecollection of the events surrounding the drafting of the Constitution to facilitate its interpretation. Abraham Baldwin ofGeorgia and Roger Sherman of Connecticut both had been members of the Philadelphia Convention and had served inthe House of Representatives during the First Congress. Both repeatedly turned to their personal recollections of events atthe 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 hismemory 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 wasunder consideration in the General Convention, a proposition was brought forward, that the General Government shouldassume and provide for the State debts, as well as the debts of the Union. It was opposed on this ground, that it did notextend to the repayment of that part which the States had sunk, as well as that which remained unpaid; had it not been forthis objection, I believe the very provision which gentlemen say was never expected, would have been incorporated inthe 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 thiscircumstance, gentlemen will see that the assumption *1198 of the State debts was in contemplation from the verycommencement of the new Government. [FN66]

In the Senate, Charles Pinckney of South Carolina, another former Convention delegate, made similar references to thehistory 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 privatejournal of the deliberations. When the House debated the First Bank of the United States in 1791, Madison objected to itsconstitutionality and noted:[H]e had reserved to himself the right to deny the authority of Congress to pass it. He had entertained this opinion fromthe date of the Constitution. His impression might, perhaps, be the stronger, because he well recollected that a power togrant 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 meaningof particular textual clauses, but to suggest an implied negative on the existence of congressional power to create thebank, based on events that transpired at Philadelphia and were not reflected in the text of the document--an apparentoriginalist 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 PresidentWashington 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 thesupreme law of the land, notwithstanding the apparent primacy of the Senate in such matters under the provisions ofarticle II, section 2, paragraph 2 of the Constitution. The House debated for one month and ultimately passed a resolutioncommanding that the negotiating instructions given the American commissioners in the treaty negotiations be deliveredto the House. [FN70]

The debate over the resolution pitted the new Jeffersonian majority in the House against a Federalist President and manyold Federalist supporters of the original constitutional document. During the debate on this resolution, several formerdelegates 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, supportedthe President and argued that the Constitution 'must be our sole guide' and that 'the words' of the text were to beinterpreted based on 'the general sense of the whole nation at the time the Constitution was formed, before any Treatywas made under it, which could, by exciting passion and discontent, warp the mind from a just and natural constructionof 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 thetruth.' [FN72] Smith therefore cited debates from both the Virginia and Pennsylvania ratification conventions and arguedthat '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 toreflect an 'almost unanimous understanding of the members of the different Conventions' in the states. [FN74] He alsoquoted passages from The Federalist to support his construction of the document. [FN75] Similarly, RepresentativeRichard Brent of Georgia turned to the ratification debates and made 'recourse to the pamphlet called The Federalist, asanother 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, wouldauthorize a request that he or his friends would explain how it was possible, if such as he states should have been theintention 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 ofthose 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 ofMadison's position. [FN78] Prefacing his later extensive exposition of those debates, Sedgwick argued that ' acontemporaneous exposition of any instrument, and especially by those *1200 who were agents in its fabrication, hadbeen 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 thesmall 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 trueconstruction 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 surroundingits 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. Directlychallenging Madison, he noted:In the construction of other Constitutions, . . . we find the historian and the commentator obliged, in the support oftheory, to resort to records unintelligible, from a change of names and of manners, or to the uncertain lights of meretradition. But, in construing our Constitution, in ascertaining the metes and bounds of its various grants of power, nothingat 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 formedit still existing, though not public, all tend to put this question in particular beyond the reach of mistake. Many who arenow present were in the Convention, and, on this question, we learned that a vote was actually taken. . . . One hundredyears 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 hiscontemporaneous 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 reservedduring 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 originalistperspective. He lamented:As to the sense of the Convention, the secrecy with which their deliberations were conducted does not permit any formalproof of the opinions and views which prevailed in digesting the power of Treaty. But from the best opportunity ofknowing the fact I aver, that it was understood by all to be the intent of the provision to give to that power the mostample latitude to render it competent to all the stipulations, which the exigencies of National Affairs mightrequire--competent to the making of Treaties of Alliance, Treaties of Commerce, Treaties of Peace and every otherspecies 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 Conventionand his understanding of the original intended meaning of the provision. [FN84] Hamilton went on, however, to makeuse of the available historical materials, noting that 'though direct proof of the views of the Convention on the pointcannot be *1202 produced--yet we are not wholly without proof on this head.' [FN85] He pointed out that both Masonand Gerry had published dissents to the document, and he used both dissents to show that even the dissenters understoodthe treaty power adopted by the Constitution to be a broad power. [FN86] While he did not have available to himmaterials necessary to undertake the investigation, Hamilton suggested that interpretation of the Constitution could beinformed by consulting 'the sense of the Community, in the adoption of the Constitution' as evidenced in two distinctsources--'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 thathistory 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 ofdetermining the true meaning of that instrument as the Conventions were: they were called in haste, they were heated byparty, 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 whichprevailed when the Constitution was adopted.' [FN90]

President Washington submitted a Message to the House of Representatives on the Jay Treaty, declining to comply withthe resolution and setting forth his position on the issue. [FN91] In his Message, Washington noted that he had 'been amember 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 wasthe result of a spirit of amity and mutual concession. . . . [T]he smaller States were admitted to an equal representation inthe Senate, with the larger States; and that this branch of the Government was invested with great powers; for, on theequal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially todepend. [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 underconsideration, they may be found in the Journals of the General Convention, which I have deposited in the office of theDepartment of State. In those Journals it will appear, that a proposition was made, 'that no Treaty should be binding onthe 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 'thatthis construction agrees with the opinions entertained by the State Conventions, when they were deliberating on theConstitution.' [FN95] Washington pointed out that opponents of the document during the ratification struggles hadattacked 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 andother 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 Houseinitiated debate on the Jay Treaty, and five days before it asked the President to deliver to it the negotiating instructionson *1204 the treaty, Washington had deposited with Thomas Pickering, the Secretary of State, the Journals of thePhiladelphia 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 repeatedchallenges from Federalist supporters of the President to discuss the history of the Philadelphia Convention. He hadunsuccessfully argued for a modification of Livingston's resolution to except papers that in the President's judgment 'maynot be consistent with the interest of the United States, at this time, to disclose.' [FN97] Failing that, he haddispassionately analyzed the linguistic inconsistencies in the document, offered five alternative constructions, and arguedfor 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 aletter 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 PhiladelphiaConvention, to consult those notes to confirm his recollection that the Convention had voted to keep the Journals secretuntil called for by a competent body. He rhetorically asked in light of that resolution, 'How can this be reconciled withthe 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. Finallyresponding 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 informationexpected. He acknowledged his surprise, also, at seeing the Message of the Executive appealing to the same proceedingsin 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 framersduring this important debate. He suggested that the former Philadelphia delegates had no particular obligation to supplythe requested information to their political opponents:[N]either himself nor the other members who had belonged to the *1205 Federal Convention, could be under anyparticular 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 thesubject. [FN103]

Madison also noted that since his recollection and interpretation differed from other members of the House who had beendelegates to the Convention, 'there would not be much delicacy in the undertaking.' [FN104] Madison recognized thatpreviously he had resorted to arguments based on original understanding of the Convention delegates during the debateon the creation of the First Bank of the United States. [FN105] He excused the apparent inconsistency with hiscontemporary position, however, by urging that he had made but a 'slight reference to the Convention' after several otherparticipants 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 citedin 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 aperfectly logical outcome. Madison failed to point out, however, that this was due to lack of available evidence. On thispoint Madison may have been more incensed by the suggestion that members of the Convention could be called upon totestify to their personal recollections than by the idea that one could resort to a written record of the proceedings forelucidation. Thus, he noted that when debate over state sovereignty had emerged in the federal courts, members of thefederal bench who had been delegates to the Convention were never called upon to expound their personal recollection ofthe proceedings on this important issue. [FN108]

Ultimately, Madison summarized as follows his own position, at least for purposes of that debate, on the interpretivesignificance 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 thata proposition 'that no Treaty should be binding on the United States, which was not ratified by law,' was explicitlyrejected. He allowed this to be much more precise than any evidence drawn from the debates in the Convention, orresting 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 truemeaning of the Constitution, what did this abstract vote amount to? Did it condemn the doctrine of the majority? So farfrom it, that, as he understood their doctrine, they must have voted as the Convention did; for they do not contend that noTreaty shall be operative without a law to sanction it; on the contrary, they admit that some Treaties will operate withoutthis sanction; and that it is no further applicable in any case than where Legislative objects are embraced by Treaties. Theterm 'ratify' also deserved some attention; for, although of loose signification in general, it had a technical meaningdifferent 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 ofthat body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came fromthem it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it bythe voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning ofthe 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 itwould be proper to follow it. [FN109]

Madison went on to cite debates in the Virginia ratification convention and the history of various amendments proposedby the ratification conventions to support his thesis that the treaty ratification power was limited and did not negate therole 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 aheavy emphasis on originalist interpretive strategies. They agreed that the document should be construed to have themeaning 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 atPhiladelphia through the summer of 1787 and drafted the language to be interpreted. Madison did not dispute thathistoriographic information had interpretive relevance to establish the true meaning of the document. Indeed, his resort tothe 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 ofpopular democracy that animated the document, as reflected in its preamble. [FN111] *1207 Madison suggested that thesignificant 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] Asnoted above, however, Madison was less sanguine about the ability to arrive at certainty of the intent of multimemberbodies. Nevertheless, these methodological difficulties did not prevent Madison from resorting to originalist interpretivestrategies 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 popularsovereignty oriented interpretive stance, resorting to 'the general sense of the whole nation at the time the Constitutionwas 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 disagreementbetween Washington and Madison lay not in the interpretive relevance of originalism, but over the appropriate historicalsources 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] andwith 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 optionsthat were available in the framers' day . . . none corresponds to the modern notion of intentionalism.' [FN116] While henotes that the late eighteen-century interpretive tradition centered on 'original intent,' Powell asserts that 'at the time, theterm referred to the 'intentions' of the sovereign parties to the constitutional compact, as evidenced in the Constitution'slanguage and discerned through structural methods of interpretation; it did not refer to the personal intentions of theframers or of anyone else.' [FN117] The debates in the House over the treaty power and the Philadelphia Convention'sdisposition of the Journals tend to discredit Powell's thesis. At the conclusion of the Convention, the delegates voted topreserve the Journals following a suggestion that their preservation was necessary to prevent 'false suggestions' *1208about 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 andratification struggles did not think that the Constitution should be interpreted, to use Madison's later prosaic phrase, basedon '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 theFederalist members of the House was not over whether to undertake the originalist historical inquiry, but rather over whoshould be considered the 'founders.' While a number of Jeffersonians, mostly former antifederalist opponents of theConstitution, argued for an ahistorical interpretive methodology, their insistence on the irrelevance of constitutionalhistory is hardly surprising. They had lost the political struggles over ratification and wanted the opportunity to reshapeand reinterpret the constitutional compromises in a fashion less consistent with that history and more consonant withtheir own political philosophies. Indeed, Powell principally relies upon such Jeffersonian opponents of the President inhis discussion of this important 1796 debate without ever acknowledging this major political dimension of theinterpretive debate.

3. Subsequent Nonjudicial Comments on Originalism

The available evidence from late eighteenth- and early nineteenth-century sources suggests that originalism was one of anumber 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 thedesirability 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 theplain 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 wouldpermit; excepting, nevertheless, a part of what relates to the judiciary. On that subject, conflicting opinions had beenmaintained with so much professional astuteness, that it became necessary to select phrases, which expressing my ownnotions 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 textualanalysis. 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 derivedsolely from textual analysis. Resort to the history and debates of the Philadelphia Convention sometimes was undertakenduring both formal and informal congressional debates over constitutional power. [FN121] As Madison grew morehostile to the broad nationalist constructions the Marshall Court gave the Constitution, his private correspondencefrequently 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 beintroduced, as broad and pliant as what has occurred. And those who recollect, and, still more, those who shared in whatpassed in the State conventions, through which the people ratified the Constitution, with respect to the extent of thepowers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented itsratification. [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 theArticles of Confederation, was intended to afford Congress the power to spend money only for purposes specifiedelsewhere in the Constitution. [FN127] In support of this conclusion, Madison carefully surveyed the available entriesregarding the clause and its evolution in the then published Journals of the Philadelphia Convention. Thus, in Madison'sterms, he in part sought 'the sense in which the terms common defense & general welfare were used by the Framers ofthe Constitution.' [FN128] Responding to this inquiry, however, Madison followed his own sense of propriety articulatedthirty-four years earlier in the House debate over the treaty power by not resorting to his own notes for the history of theConvention. Instead he limited his historically based response to the published Journals, suggesting that 'I shall derive myconstruction of the passage in question, from sources of information & evidence known or accessible to all who feel theimportance of the subject, and are disposed to give it a patient examination.' [FN129] *1211 Madison did not rest hisinterpretation exclusively on his research from the Journals, however, since he also extensively relied upon the history ofthe 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'sviews had varied little since 1796. Madison's extensive resort to historical sources beyond the text of the document in thismemorandum 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 tothe then unpublished Journals, a sensitivity similar to Madison's disinclination even in semiprivate correspondence toresort to his own unpublished journals to resolve interpretive debates. [FN132] This sensitivity also was evidenced by hisinsistence that the relevant universe of founders whose intent should be sought included not only the delegates toPhiladelphia who drafted the constitutional proposal, but more importantly the people of the United States whoseconcurrence through their ratification conventions was necessary to ripen the draft document into a functioningconstitution.

While Madison's overall interpretive approach seemed reasonably consistent over time, there were periods in his careerwhen he stated his position in such an extreme fashion that it might appear to be nonoriginalist. [FN133] Close analysisof these statements, however, generally reveals that Madison continued to emphasize his disinclination to prefer theinterpretive understanding of the delegates at Philadelphia over the original *1212 understanding of the representatives ofthe people at the state ratification conventions. As he wrote in 1821, the duty of all was to support the Constitution 'in itstrue meaning as understood by the Nation at the time of its ratification.' [FN134] While such an originalist methodologymay not be identical to the approach of an intentionalist who focuses for interpretive meaning exclusively on thedelegates to Philadelphia, Madison nevertheless was advancing an originalist rather than an ahistorical understanding ofinterpretive methodology.

Madison's historical search for original understanding of the Constitution was not limited, however, to the debates of theConventions. In one of his last pronouncements on his interpretive methodology, Madison discussed in privatecorrespondence 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 wasintended to withhold from Congress a power to protect manufacturer by commercial regulations,' [FN136] there wereserious 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 mightbe disapproved because they were in bad form or not in order; because they blended other powers with the particularpower in question; or because the object had been, or would be, elsewhere provided for. No one acquainted with theproceedings of deliberative bodies can have failed to notice the frequent uncertainty of inferences from a record of nakedvotes. [FN137]

Not surprisingly, this critique of the Journals as an important source of interpretive understanding magnified the ultimatesignificance of his own then unpublished notes of the debates and deliberations of the Philadelphia Convention. Madisonnevertheless suggested historical methods in addition to direct reliance on debates to flesh out the original understandingof the document. For example, he suggested that '[i]n expounding the Constitution and deducing the intention of theframers, 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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should not be construed to supersede state insolvency laws since such laws had been a feature of early colonial and stateregulation and 'because we know from the history of the times, that the mind of the convention was directed to other lawswhich 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 thespirit is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsiccircumstances, 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 beinconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departurefrom the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradictedby any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrumentcould 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 theCivil 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 decadesof judicial interpretation of the Constitution was The Federalist, that erudite collection of pseudonymous newspaperessays penned by Hamilton, Madison, and Jay to convince the New York state ratification convention to approve thedraft Constitution. [FN152] Many other such essays and broadsides were published, [FN153] *1216 but The Federalistearned the greatest fame. While due in great part to its breadth and depth of political vision, the fame of The Federalistalso was greatly increased by the comparatively rapid collection and publication of the papers. The first thirty-six paperswere collected and published together in late March 1788, while new contributions were still appearing. A secondvolume containing the remaining papers was published on May 28, 1788. Thus, even before the Constitution entered intoforce, The Federalist represented the single most accessible source of commentaries on the draft document. Almost assoon as the Supreme Court began interpreting the Constitution, it cited and relied on The Federalist, [FN154] using itsimultaneously as an authoritative reflection of the framers' intent and as a persuasive treatise on the meaning of theConstitution. [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 Wooddesondue 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 documentas the source of his arguments. In Fletcher v. Peck, [FN157] Marshall cited The Federalist and the House debates on thetenth 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 thoseexpressly granted, while in the tenth amendment 'the word expressly, was purposely rejected.' [FN159] Marshall'sreliance on The Federalist increased in Cohens v. Virginia, [FN160] in which he looked extensively to the history of theConvention 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 shallalike arrive at the conclusion, that this power was given, in consequence of an incident which had occurred inPhiladelphia, 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 onour constitution; and is appealed to by all parties, in the questions to which that instrument has given birth. Its intrinsicmerit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much intheir power to explain the views with which it was framed. These essays having been published, while the constitutionwas before the nation for adoption or rejection, and having been written in answer to objections founded entirely on theextent of its powers, and on its diminution of state sovereignty, are entitled to the more consideration, where they franklyavow 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 theConvention, 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 inOsborn v. Bank of the United States, [FN163] and made extensive use of it in interpreting the commerce power inGibbons v. Ogden [FN164] and the copyright power in Wheaton v. Peters. [FN165] Even when Marshall did notexpressly cite The Federalist, some of his arguments seemed directly appropriated from it without attribution. Forexample, in Marbury v. Madison, [FN166] Marshall's argument supporting judicial review seems to have principallyderived from Hamilton's argument for federal judicial independence in The Federalist No. 78. [FN167] Similarly, asalready 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 theprimary 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 TaneyCourt 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 theperiod 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, constitutedissents.

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 citedThe Federalist in interpreting the scope of federal judicial review under article III, noting the high esteem in which it washeld in Calder and proclaiming that ' i f we love and cherish that constitution, we shall highly esteem this excellentcommentary on that precious instrument.' [FN173] A Massachusetts circuit court called The Federalist 'a work of thevery best authority.' [FN174]

Even after Marshall's death and the rise of the Taney Court, resort to originalist interpretive strategies in the inferiorfederal courts accelerated. While the Supreme Court at the time mostly ignored originalist history, particularly the thenrecently 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 Federalistplayed a particularly important role in this process. In The Huntress, [FN175] a district court invoked The Federalist toconstrue the scope of admiralty jurisdiction conferred in article III, calling it 'the contemporaneous construction of theconstitution' that 'shared and expressed the common feeling and opinion of the convention.' [FN176] The lower federalcourts, 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 notwidely available to courts. Unlike The Federalist, such reports were not rapidly collected into published volumes, and thedifficulties 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 commonrecollection and knowledge rather than detailed research into primary historical sources. [FN177] In particular, during the1850s 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 ofElliot's Debates, [FN179] a collection of available records of the debates at the state ratification conventions, a number offederal 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 materialthat his papers contained. Thus, in the following two decades, Madison's papers were frequently referred to in federalcourt decisions interpreting the Constitution. Their first use in a Supreme Court case appears to come, but one year aftertheir publication, in The Amistad, [FN181] in which they were cited to demonstrate that while the PhiladelphiaConvention recognized slavery as an existing institution, the delegates 'were careful to exclude from that instrumentevery expression that might be construed into an admission that there could be property in men.' [FN182] The Court alsocited 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 wason textual exegesis and precedent rather than on historiographic interpretation. When the historical materials were usedduring this formative period, they were sometimes invoked as if they were simply another precedent, even though they fitonly awkwardly into the system of stare decisis of the day. Other times, however, as in Chief Justice Marshall'scomments in Cohens, the originalist assumptions of the interpreter relying on these materials are clearly revealed in theopinion. 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] Originalismtherefore neither was demonstrably originally intended as an exclusive interpretive methodology, as some modernoriginalists imply, nor was it unknown to the framers and early interpreters of the Constitution, as argued by ProfessorPowell. From this analysis and Powell's demonstration of the importance of textualism in early interpretation, it isevident that originalist interpretation, while known, discussed, and employed during the formative years of constitutionalinterpretation, constituted neither a predominant nor exclusive interpretive methodology. Any defense of the modernoriginalist constitutional interpretation position therefore must depend on a nonoriginalist premise. [FN186] A defensecannot rest on the premise, often assumed by modern originalists, that intentionalist methodology was constitutionallyand historically mandated as the primary mode of interpreting the document.

III. HISTORICAL METHODOLOGY AND ORIGINAL UNDERSTANDING

A. Ahistorical Tendencies in the Debate over Originalist InterpretationThe current debate over originalist interpretation highlights ahistorical tendencies on both sides of the issue. While thenonoriginalists obviously eschew the interpretive significance of historiographic research, the manner *1221 in whichsome originalists have conducted their interpretive campaign often suggests that they are oblivious to the legal andintellectual history of the nation, and in particular the history of the jurisprudential trends that have animated thedevelopment of American law. Thus, the history that certain originalists produce to defend their positions often has apeculiarly ahistorical flavor, attempting to interpret the primary historical materials through the jurisprudential lenses ofentirely separate eras.

A paradigm of this problem is the work of the prodigious originalist historian, Professor Raoul Berger. To illustrate thepoint, it is worth focusing on Berger's critique of 'arguments for judicial power of revision,' as he calls nonoriginalistinterpretive methodologies in his book, Government by Judiciary. [FN187] With