Conflict, consensus & constitutional meaning: the enduring legacy of Charles Beard.

• Author: Cornell, Saul
• Position: Centennial of Charles Beard's 'Economic Interpretation of the Constitution'

Few books in American history have had as profound an impact on scholarly debate as Charles Beard's An Economic Interpretation of the Constitution. (1) Beard not only shaped the terms of historical debate for much of the twentieth century, his emphasis on the contested nature of politics and constitutionalism in the Founding continues to influence historical scholarship. (2) Although orthodox Beardianism is rare today, historical scholarship has embraced a form of soft Beardianism. Most historians accept that the Founding era was deeply divided over constitutional ideas and most also accept that socio-economic tensions contributed to this divisiveness. The contrast with legal scholarship could hardly be starker: legal scholarship on the Constitution has generally neglected Beard. (3) Among legal scholars, originalists have been the group most resistant to recognizing the importance of Beard's basic insight into Founding era constitutionalism. Rather than acknowledge the raucous and often cacophonous nature of the public debate over the Constitution's original meaning, originalists have conjured a false historical past marked by consensus. (4)

Constitutional ideas are not disembodied abstractions floating in some type of constitutional ether. (5) Recovering the historical meaning of a text involves identifying the communicative intent of its author and understanding the myriad ways different readers and groups of readers would have interpreted a particular author's words. (6) In all but the simplest cases, deciding which of those original understandings ought to be given legal effect is not a neutral choice, but a political or philosophical one. The best any originalist theory could ever hope to accomplish would be to allow us to pick sides in the Founding era's own constitutional debates. (7)

Many originalists have treated meaning as if it were objective, but this is clearly a mistake. (8) Meaning is not objective, but the public nature of meaning renders it inter-subjective. (9) Recovering the meaning of the Constitution requires moving beyond the text and the words on the page to reconstructing the contextual factors which would have been used by listeners and readers to make sense of an author's words. Originalists have generally treated the people as if they were mute bystanders to the great constitutional drama unfolding in 1788. (10) Federalists and Anti-Federalists were not homogenous modern style parties, but loose coalitions who were often held together by little more than a few commonly shared texts and a general predisposition to support or oppose ratification. The existence of a common language did not always signal deeper commitment to the same legal and constitutional ideals. The meaning of a phrase such as "the right to bear arms" meant one thing to Daniel Shays and quite another to James Madison. (11) To understand the dynamics of the original debate over constitutional meaning one must pay attention to the familiar voices of the Founding era's elites and the less familiar voices of ordinary Americans. The time has arrived for a new constitutional historicism, a scholarly approach that would unite the top down focus of traditional constitutional history with a bottom up approach informed by an appreciation of Beard's basic insight into the contested nature of early American constitutionalism. (12)

The approach sketched above is consistent with recent work in the philosophy of language. (13) Few of the Constitution's open ended provisions, the ones most likely to spawn controversy today, are likely to yield a single uncontested meaning when subjected to a rigorous historical analysis. (14) The dominant paradigm among originalists, public meaning originalism, is based on an overly simplistic view of history and a flawed understanding of the philosophy of language. (150 Public meaning originalism treats the task of recovering original meaning as if it were akin to running the Constitution's text through something like a Google translator function set to 1788 American English. (16) The meaning of any text depends as much on the background assumptions against which the text was originally read as it does the dictionary meaning of the words in the text. (17) Understanding the pragmatics of communication is at least as important as, if not more so than, the semantic content of the text. (18)

FRAMERS, RATIFIERS, AND THE PROBLEM OF ANTI-FEDERALISM

Beard's study was an ambitious effort to understand the origins of the Constitution in materialist terms. Although not a Marxist, Beard's progressive vision, rooting politics in the clash of economic interests, has influenced historical debate for nearly a century. (19) Two claims made by Beard have generated a lively inter-generational debate about the Constitution. Beard's primary claim that decisions within the Philadelphia Convention were motivated by the economic interests of the delegates has been attacked by many, but nonetheless continues to have supporters, mostly notably among quantitative economic historians. (20) Many historians would concede that economic interests played some role in the Convention's deliberations, but few would embrace Beard's brand of economic determinism. (21) Far less scholarly attention has been devoted to the other aspect of Beard's theory, his elaboration of Orrin Grant Libby's analysis of the geographical distribution of the vote on ratification. (22) In contrast to Beard, Libby is not a name many modern scholars readily recognize. Elaborating Libby's argument, Beard claimed that Anti-Federalism drew its greatest numerical strength from back country regions, areas in which debt-ridden farmers sought pro-inflationary economic policies. Not only has this insight been widely embraced by many historians, it has achieved an almost canonical status in American history textbooks. (23) In his classic work on the Constitution Beard observed that "[t]he opposition to the Constitution almost uniformly came from the agricultural regions, and from the areas in which debtors had been formulating paper money and other depreciatory schemes." (24) It is this soft version of Beardianism that has come to dominate historical scholarship. Subsequent scholarship has refined this basic insight in a number of important ways. Neo-Progressive historians, most significantly, Jackson Turner Main, argued that the Constitution pit commercially oriented farmers and merchants against champions of a more radical localist agrarian tradition. (25) Building on neo-Progressive scholarship a new generation of social historians elaborated this approach, illuminating the ideologies of farmers, artisans, slaves, and women. (26) Inspired by the rise of cultural history, more recent scholarship on the Founding era has focused on political culture, analyzing parades, crowd actions, and the dynamics of the emerging public sphere of print culture in the new republic. (27) Finally, neo-Beardians, Woody Holton and Terry Bouton have refocused attention on the role of debtor politics in early American history. (28)

One of the most important alternative historical paradigms to the one sketched above is associated with the work of Bernard Bailyn and his students. (29) Pauline Maier and Jack Rakove, in particular, elaborated the intellectual and political forces shaping the Constitution and ratification. Neither Maier nor Rakove was much influenced by Beard, but one can detect a subtle Beardian influence in another student of Bailyn, Gordon S. Wood. (30) In The Creation of the American Republic, Wood cast the AntiFederalists as populist democrats. He drew a vital distinction between the Anti-Federalist elite and ordinary Anti-Federalists. (31) Wood conceded that "such 'aristocrats' as [Richard Henry] Lee or [George] Mason did not truly represent Anti-Federalism." (32) Although Woody Holton and Gordon Wood represent two opposing poles of the contemporary historiographical spectrum, both scholars argue that elite Anti-Federalist figures such as George Mason tell us little about the motivations and beliefs of popular opposition to the Constitution. (33) The relationship between elite and popular thought was actually far more fluid and dynamic than either of these accounts acknowledges. Constitutional ideas flowed in both directions, percolating down from elites and bubbling up from below. (34)

MASON'S OBJECTIONS AND THE DISSENT OF THE MINORITY: A TALE OF TWO TEXTS

In both Pennsylvania and New York Anti-Federalism was dominated by middling democrat radicals. The American Revolution had turned out the traditional elites and opened up politics to a new type of popular politician. Farmers and artisans from the ranks of the industrious middling sorts dominated politics in both states. (35) Although he may have been a planter aristocrat, George Mason's influence on popular Anti-Federalist thought should not be under estimated. Middling radicals in Pennsylvania and New York eagerly sought out Mason's Objections to the Constitution. (36) A manuscript copy of Mason's text circulated widely among Anti-Federalists in these regions prior to its publication. (37) Robert Whitehill, an important backcountry spokesman from Pennsylvania, consulted Mason's Objections before preparing the list of Amendments to the Constitution he introduced toward the end of the Pennsylvania ratification convention. Whitehill's proposals echoed some elements of Mason's arguments, but there were important differences between the two documents. One of the most striking differences between Mason's text and Whitehill's was the treatment of the militia and the right to bear arms. Mason's text echoed the language of the Virginia Declaration of Rights. (38) It attacked the power to raise a standing army, but did not expressly affirm a right to bear arms. (39) Whitehill's list of Amendments combined together two separate rights protected in the 1776 Pennsylvania Constitution, a right to bear arms and a...