Original Meanings: Politics and Ideas in the Making of the Constitution.

• Author: Eisgruber, Christopher L.

By Jack Rakove. New York: Alfred A. Knopf. 1996. Pp. xvi, 439. $35.

Everybody knows you shouldn't judge a book by its cover. Readers of Jack Rakove's Original Meanings: Politics and Ideas in the Making of the Constitution(1) will need a turbo-charged version of that old maxim. They had best not judge his book by its cover or its title or its preface -- or, for that matter, by its first chapter, its last chapter, or its conclusion (which Rakove calls a "Coda").

Original Meanings is a superb book with a misleading title. It should have been called something like Early Interpretations, then readers would know what to expect. Rakove has written a narrative history of the arguments about constitutional meaning made before, during, and shortly after ratification of the United States Constitution. Rakove situates these interpretations in the context of the practical political challenges facing the Founders. He has a superb feel for the dynamic of early American political argument and an extraordinary knowledge of the founding period. His book is readable and detailed. Rakove is a master historian, and readers who come with appropriate expectations will not go away disappointed.

But Rakove has made life difficult for his readers. Rakove's book isn't titled Early Interpretations. His choice, Original Meanings, suggests that he intends to say something about the current debate over originalism in constitutional interpretation. If the title fails to convey that impression, the publisher's blurbs on the dustjacket surely do: here we find Stanley Katz opining that Original Meanings is "[t]he most thoughtful and careful scholarly analysis to date of the extent to which the [F]ramers should control our contemporary understanding of the Constitution," and Cass Sunstein declaring that Rakove's book is "a striking contribution to modern debate about the contemporary relevance of the original Constitution." Of course, if covers in general are untrustworthy guides to books, blurbs are doubly so. But then we have the preface, in which Rakove himself tells us, quite unambiguously, that he has two objectives. First, he says, Original Meanings "examines the politics of constitution-making and the major problems of constitutional theory and institutional design that Americans had to consider when they replaced the Articles of Confederation with a true national government" (p. xiii). Fair enough, had he stopped there, I could have forgiven the title. But then he continues to his second objective: "[I]n telling this story, I also address a question that recurs in legal and political controversies over the Constitution: What authority should its `original meaning' (or `original intention' or `understanding') enjoy in its ongoing interpretation?" (p. xiii). So there it is: Rakove means to write a book about originalism. Or so the too-trusting reader will mistakenly believe. In fact, Original Meanings is not about originalism.

In this review, I begin by accepting Rakove's invitation to treat his book as though it were somehow about originalism. After suggesting why Original Meanings is unsatisfying when read from that perspective, I explain why it is nevertheless a "must read" for everybody interested in constitutional law: once the distracting dalliances with originalist theory are put to one side, a fascinating argument emerges. When Americans think about the founding, many regard it as a thing of wonder, sacred and beautiful. They approach it as they would a work of art or a classic text of political philosophy; they act as though their task were to immerse themselves in ancient wisdom and preserve the document's subtle harmonies. Rakove persuasively argues that the founding generation saw its work differently: as experimental, flawed, and incomplete. We can learn from the Framers' example even if we are not bound by their intentions. To complete the project they launched, we must be less reverent toward the compromises and guesses they made.

I.

Rakove's text, including the preface, runs 374 pages. Of these, only about 54 discuss originalism -- the preface, the first chapter, the last chapter, and the coda. As we have seen, Rakove's preface announces his intention to say something about originalism. His first chapter, entitled "Perils of Originalism," identifies various confusions that might result from sloppy readings of the historical record. Rakove believes that originalists have carelessly failed to distinguish between "original intention," "original understanding," and "original meaning." Intention, he says, is best used to describe the views of the men who drafted the Constitution; understanding should describe the views of those who read the Constitution and participated in debates about its ratification (pp. 7-8). The Constitution's original meaning is a broader concept that describes the sense originally ascribed to the Constitution's words (pp. 7-8). According to Rakove, "original meaning" might pertain either to original intentions or to original understandings or to both. Rakove's last chapter, titled "Madison and the Origins of Originalism," describes Madison's evolving views about originalism (pp. 339-65) Finally, the three-page coda muses over the appeal of originalism (pp. 366-68).

Nowhere does Rakove squarely address the question he announces in his preface: "What authority should [the Constitution's] `original meaning' (or `original intention' or `understanding') enjoy in its ongoing interpretation?" (p. xiii). That, obviously, is a normative question of constitutional theory, not a historical question. It asks what authority original meaning ought to have, not what authority it has had, or what authority Madison thought it should have. Perhaps Rakove doesn't really mean to get into these matters at all. Indeed, elsewhere in the preface, he quietly drops an astonishing footnote, which deserves quotation in full:

I am often asked whether I think originalism offers a viable or valid

theory of constitutional interpretation. My preferred answer is, I

hope, suitably ambivalent. In the abstract, I think that originalism is

vulnerable to two powerful criticisms. First, it is always in some

fundamental sense anti-democratic, in that it seeks to subordinate the

judgment of present generations to the wisdom of their distant

(political) ancestors. Second, the real problems of constructing coherent

intentions and understandings from the evidence of history raise

serious questions about the capacity of originalist forays to yield the

definitive conclusions that the advocates of this theory claim to find. On

the other hand, I happen to like originalist arguments when the

weight of the evidence seems to support the constitutional outcomes I

favor -- and that may be as good a due to the appeal of originalism

as any other. [p. xv n.*]

What's ambivalent? I count two forehand blows (it's antidemocratic and it's impractical) against originalism followed by a backhand slap (it's pretextual). I can't imagine that originalism's friends would derive much cheer from Rakove's admission that he likes originalist arguments when they coincide with his values or interests. From the fact that Rakove not only holds such a dim view of originalism but simply asserts it without argument in a footnote. we might reasonably infer that Rakove never intended his book to say anything about the role originalism should play in constitutional interpretation.

On the other hand, in his first chapter, Rakove makes more substantial concessions to originalism. He says that originalism's premise is that "original meaning should prevail . . . because the authority of the Constitution as supreme law rests on its ratification by the special, popularly elected conventions of 1787-88" (p. 9). Rakove restates this proposition to clarify his point: "The Constitution derives its supremacy, in other words, from a direct expression of popular sovereignty, superior in authority to all subsequent legal acts resting only on the weaker foundations of representation" (p. 9). Rakove then concludes that "[i]f this becomes the premise of interpretation, it follows that the understanding of the ratifiers is the preeminent and arguably sole source for reconstructing original meaning" (p. 9).

I am not sure what this last sentence means. Rakove might be saying something very ambitious. He might be saying that if we accept the premise he identifies -- namely, that the Constitution's authority depends upon its status as a "direct expression of popular sovereignty" -- then it follows both that originalism is the best theory of constitutional interpretation and that, in particular, the ratifiers' understandings must determine what the Constitution means. Or he might mean to state a weaker claim, one that distinguishes among varieties of originalism without commenting upon the case in favor of originalism. He might mean that if we accept the premise he identifies, then originalism, if it is true (and it might not be, even after we concede the premise), must focus its attention upon the ratifiers' understandings rather than the Framers' intentions. I shall take up each possibility; as it turns out, both claims are false.

Consider first the more ambitious variant, which maintains that if the Constitution's authority depends upon its ratification by special, popularly elected conventions, then originalism must be true. If this premise in fact entailed the proposed conclusion, we would have a very powerful argument for originalism. Unless one puts extraordinary weight upon "popularly elected" or "direct expression of popular sovereignty," the premise is tough to deny. Of course the Constitution's authority depends upon the fact that it was ratified by institutions which could plausibly claim to speak on behalf of the American people. Of course the Constitution is supreme by comparison to ordinary legislation, which bears a less direct connection to the sovereign people.

But why...