Jack Rakove's Rendition of Original Meaning

Indiana Law Journal

Volumn 72, Issue 3, 1997, Pages

  Berger, Raoul ^a  

^a NONE

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EID: 1842791554     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (298)

1. Infra text accompanying notes 29-32.
2. See infra notes 26 and 27 and accompanying text.
3. JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 167 (Gerald Gunther ed., 1969) (emphasis in original).
4. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996).
5. Id. at 10.
6. Id.
7. Id. at 6. But compare the legislative history of suffrage. See infra text accompanying notes 111-15. While he seeks to discredit his opponents, his evaluation of historical data raises grave doubts about the trustworthiness of his own judgment. For example, Rakove couples Hamilton and Madison "as leading framers," as "these two architects of the new federalism." RAKOVE, supra note 4, at 16, 189. Hamilton left the Convention on June 30, visited it sporadically, and returned for the signing in September. CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA 115 (1966). At the Convention, Doctor William Johnson stated that Hamilton "alone . . . boldly and decisively contended for an abolition of the State Govts," the very antithesis of federalism. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 355 (Max Farrand ed., rev. ed. 1966) [hereinafter RECORDS]. At the signing, he candidly said that "[n]o man's ideas were more remote from the plan than his own were known to be . . . ." 2 id. at 645-46.
8. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703, 705 (1975).
9. Ethan Bronner, S-t-r-e-t-c-h-i-n-g the Constitution, BOSTON GLOBE, May 8, 1988, at A27.
10. RAKOVE, supra note 4, at 5 (emphasis added).
11. Raoul Berger, Constructive Contempt: A Post-Mortem, 9 U. CHI. L. REV. 602 (1942). Justice Frankfurter cautioned, "Nor should resentment against an injustice displace the controlling history in judicial construction of the Constitution." United States v. Lovett, 328 U.S. 303, 323 (1946) (Frankfurter, J., concurring).
12. RAKOVE, supra note 4, at 367-68 (emphasis added). His commitment to "claims of equality," even at the cost of Article V, vitiates Rakove's disinterestedness, that hallmark of scholarship. Learned Hand declared: You cannot raise the standard against oppression, or leap into the breach to relieve injustice, and still keep an open mind to every disconcerting fact, or an open ear to the cold voice of doubt. I am satisfied that a scholar who tries to combine these parts sells his birthright for a mess of pottage . . . . LEARNED HAND, THE SPIRIT OF LIBERTY 138 (Irving Dilliard ed., 3d ed. 1960). "Disinterested curiosity has been the great motive power of scientific research." J.W.N. SULLIVAN, THE LIMITATIONS OF SCIENCE 151 (1949). Rakove's "rail," like his "quest for the Holy Grail," is calculated to discredit the opposition, for "rail" is defined as use of "scornful, insolent or derisive language," 2 FUNK & WAGNALLS NEW STANDARD DICTIONARY OF THE ENGLISH LANGUAGE 2044 (1938), a style notably absent from originalist writings.
13. RAKOVE, supra note 4, at 367-68 (emphasis added). His commitment to "claims of equality," even at the cost of Article V, vitiates Rakove's disinterestedness, that hallmark of scholarship. Learned Hand declared: You cannot raise the standard against oppression, or leap into the breach to relieve injustice, and still keep an open mind to every disconcerting fact, or an open ear to the cold voice of doubt. I am satisfied that a scholar who tries to combine these parts sells his birthright for a mess of pottage . . . . LEARNED HAND, THE SPIRIT OF LIBERTY 138 (Irving Dilliard ed., 3d ed. 1960). "Disinterested curiosity has been the great motive power of scientific research." J.W.N. SULLIVAN, THE LIMITATIONS OF SCIENCE 151 (1949). Rakove's "rail," like his "quest for the Holy Grail," is calculated to discredit the opposition, for "rail" is defined as use of "scornful, insolent or derisive language," 2 FUNK & WAGNALLS NEW STANDARD DICTIONARY OF THE ENGLISH LANGUAGE 2044 (1938), a style notably absent from originalist writings.
14. RAKOVE, supra note 4, at 367-68 (emphasis added). His commitment to "claims of equality," even at the cost of Article V, vitiates Rakove's disinterestedness, that hallmark of scholarship. Learned Hand declared: You cannot raise the standard against oppression, or leap into the breach to relieve injustice, and still keep an open mind to every disconcerting fact, or an open ear to the cold voice of doubt. I am satisfied that a scholar who tries to combine these parts sells his birthright for a mess of pottage . . . . LEARNED HAND, THE SPIRIT OF LIBERTY 138 (Irving Dilliard ed., 3d ed. 1960). "Disinterested curiosity has been the great motive power of scientific research." J.W.N. SULLIVAN, THE LIMITATIONS OF SCIENCE 151 (1949). Rakove's "rail," like his "quest for the Holy Grail," is calculated to discredit the opposition, for "rail" is defined as use of "scornful, insolent or derisive language," 2 FUNK & WAGNALLS NEW STANDARD DICTIONARY OF THE ENGLISH LANGUAGE 2044 (1938), a style notably absent from originalist writings.
15. Holmes insisted that "so long as the American alchemy converted great political issues into questions of law their resolution must be found in legal rather than political reasoning." MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES: THE PROVING YEARS 56 (1963). Rakove regards originalism as unpromising because of the Supreme Court's use of "law-office history." RAKOVE, supra note 4, at 11. But abuse of a doctrine does not impeach its validity. Rakove's opus drips with condescension towards legal history, a laughable attitude in light of such giants as Frederic Maitland and Sir William Holdsworth. A divorce between historians' and originalists' methodology should not hastily be assumed. Two eminent twentieth-century British historians, Hugh Trevor Roper and G.R. Elton, were agreed that trie essence of "historical method" is to ground "detail upon evidence and generalization upon detail." Hugh Trevor- Roper, Historian's Credo (reviewing G.R. ELTON, THE PRACTICE OF HISTORY (1967)), SUNDAY TIMES (London), Oct. 15, 1967, at 33. Lawyers are taught to collect the facts and to draw inferences therefrom that can withstand criticism.
16. Holmes insisted that "so long as the American alchemy converted great political issues into questions of law their resolution must be found in legal rather than political reasoning." MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES: THE PROVING YEARS 56 (1963). Rakove regards originalism as unpromising because of the Supreme Court's use of "law-office history." RAKOVE, supra note 4, at 11. But abuse of a doctrine does not impeach its validity. Rakove's opus drips with condescension towards legal history, a laughable attitude in light of such giants as Frederic Maitland and Sir William Holdsworth. A divorce between historians' and originalists' methodology should not hastily be assumed. Two eminent twentieth-century British historians, Hugh Trevor Roper and G.R. Elton, were agreed that trie essence of "historical method" is to ground "detail upon evidence and generalization upon detail." Hugh Trevor- Roper, Historian's Credo (reviewing G.R. ELTON, THE PRACTICE OF HISTORY (1967)), SUNDAY TIMES (London), Oct. 15, 1967, at 33. Lawyers are taught to collect the facts and to draw inferences therefrom that can withstand criticism.
17. Holmes insisted that "so long as the American alchemy converted great political issues into questions of law their resolution must be found in legal rather than political reasoning." MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES: THE PROVING YEARS 56 (1963). Rakove regards originalism as unpromising because of the Supreme Court's use of "law-office history." RAKOVE, supra note 4, at 11. But abuse of a doctrine does not impeach its validity. Rakove's opus drips with condescension towards legal history, a laughable attitude in light of such giants as Frederic Maitland and Sir William Holdsworth. A divorce between historians' and originalists' methodology should not hastily be assumed. Two eminent twentieth-century British historians, Hugh Trevor Roper and G.R. Elton, were agreed that trie essence of "historical method" is to ground "detail upon evidence and generalization upon detail." Hugh Trevor- Roper, Historian's Credo (reviewing G.R. ELTON, THE PRACTICE OF HISTORY (1967)), SUNDAY TIMES (London), Oct. 15, 1967, at 33. Lawyers are taught to collect the facts and to draw inferences therefrom that can withstand criticism.
18. Nobelist Steven Weinberg reportedly stated that some "complex phenomena, such as turbulence, or economics, or life, require their own special laws and generalizations." JOHN HORGAN, THE END OF SCIENCE 75 (Addison-Wesley ed., 1996).
19. RAKOVE, supra note 4, at 342-43.
20. LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON AND THE FOUNDING OF THE FEDERAL REPUBLIC 80 (1995).
21. Much American law came out of Matthew Bacon's A New Abridgment of the Law. MATTHEW BACON, A NEW ABRIDGMENT OF THE LAW (Henry Gwyllim et al. eds., 5th English ed. 1876) (1736); see infra text accompanying note 37. Justice Story stated that "Bacon's Abridg[ment] title, Statute I. contains an excellent summary of the rules for construing statutes." 1 JOSEPH STORY, LL.D., COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 400 n.2 (Thomas M. Cooley ed., 4th ed. 1873) (1833).
22. Much American law came out of Matthew Bacon's A New Abridgment of the Law. MATTHEW BACON, A NEW ABRIDGMENT OF THE LAW (Henry Gwyllim et al. eds., 5th English ed. 1876) (1736); see infra text accompanying note 37. Justice Story stated that "Bacon's Abridg[ment] title, Statute I. contains an excellent summary of the rules for construing statutes." 1 JOSEPH STORY, LL.D., COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 400 n.2 (Thomas M. Cooley ed., 4th ed. 1873) (1833).
23. STORY, supra note 17, § 158 n.2. His contemporary, Chancellor James Kent, warned against leaving courts "a dangerous discretion . . . to roam at large in the trackless field of their own imaginations." 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 373 (9th ed. 1858).
24. United States v. Smith, 18 U.S. (5 Wheat.) 153, 160 (1820). For additional citations, see RAOUL BERGER, GOVERNMENT BY JUDICIARY 195 n.5 (1977).
25. 9 BACON, supra note 17, at 244.
26. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824).
27. RAKOVE, supra note 4, at 290-92.
28. Willard Hurst, The Role of History, in SUPREME COURT AND SUPREME LAW 75, 77 (Edmund Cahn ed., 1954). Paul Brest observed: [S]uppose that the Constitution provided that some acts were to be performed "biweekly." At the time of the framing of the Constitution, this meant only "once every two weeks"; but modern dictionaries, bowing to pervasive misuse, now report "twice a week" (i.e., semiweekly) as an acceptable definition. To construe the provision now to mean "semiweekly" would certainly be a change of meaning (and an improper one at that). PAUL BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 146 n.38 (1975).
29. Willard Hurst, The Role of History, in SUPREME COURT AND SUPREME LAW 75, 77 (Edmund Cahn ed., 1954). Paul Brest observed: [S]uppose that the Constitution provided that some acts were to be performed "biweekly." At the time of the framing of the Constitution, this meant only "once every two weeks"; but modern dictionaries, bowing to pervasive misuse, now report "twice a week" (i.e., semiweekly) as an acceptable definition. To construe the provision now to mean "semiweekly" would certainly be a change of meaning (and an improper one at that). PAUL BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 146 n.38 (1975).
30. For citations, see RAOUL BERGER, DEATH PENALTIES 62 (1982).
31. THE FEDERALIST No. 83, at 559 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (emphasis in original).
32. JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 204, 206 (Raymond Wilburn ed., 1947) (1690).
33. Judges are to be guided by "the final causes, for which the law was made; the knowledge of which final causes is in the legislator." THOMAS HOBBES, LEVIATHAN 180 (Michael Oakeshott ed., Basil Blackwell 1960) (1651). "For it is not the letter, but the intendment, or meaning that is to say, the authentique interpretation of the law (which is the sense of the legislator) in which the nature of the law consisteth." Id. at 211-12. The Framers were familiar with Hobbes and Locke. RAKOVE, supra note 4, at 100.
34. THE TABLE-TALK OF JOHN SELDEN 10 (S.W. Singer ed., 3d ed. 1860).
35. See A DISCOURSE UPON THE EXPOCISION & UNDERSTANDINGE OF STATUTES 151-52 (Samuel E. Thorne ed., 1942) [hereinafter A DISCOURSE].
36. CHRISTOPHER HATTON, A TREATISE CONCERNING STATUTES, OR ACTS OF PARLIAMENT: AND THE EXPOSITION THEREOF 14-15 (London, Richard Tonson 1677).
37. 1 SIR EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAW OF ENGLAND; OR A COMMENTAR Y UPON LITTLETON 36a (Garland Pub. 1979) (1628).
38. 77 Eng. Rep. 1235, 1245 (K.B. 1615). Other cases and materials are discussed in several of my articles, cited infra note 64. In light of this English history, Rakove's attribution to Madison of authorship of original intention "theory" is astonishing. RAKOVE, supra note 4, at xvi (describing Madison as "the leading author of the theory of originalism"); see also id. at 342.
39. J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY 35 (reissue 1987). Pocock expatiates: Institutions which have survived . . . for a long time must be presumed to have solved innumerably more problems than the men of the present age can imagine, and experience indeed shows that the efforts of the living, even mustering their best wisdom for the purpose, to alter such institutions in the way that seems best to their own intelligence, have usually done more harm than good. The wisdom which they embody has accumulated to such a degree that no reflecting individual can in his lifetime come to the end of it, no matter how he calls philosophy and theoretical reason to his aid. Id. at 36.
40. RAKOVE, supra note 4, at 153 (quoting THE FEDERALIST No. 20, at 128 (James Madison) (Jacob E. Cooke ed., 1961)).
41. Id. at 8.
42. Id. at 194. The history of Parliament framed American constitutionalism. Id. at 205-09. "Colonists naturally regarded their own legislative assemblies as miniatures of the mother Parliament. . . ." Id. at 20.
43. Julius Goebel, Ex Parte Clio, 54 COLUM. L. REV. 450, 455 (1954); see also Ex parte Grossman, 267 U.S. 87,108 (1925) ("The language of the Constitution cannot be interpreted safely except by reference to the common law . . . .").
44. 7 BACON, supra note 17, at 457-58.
45. 2 T. RUTHERFORTH, INSTITUTES OF NATURAL LAW 307, 309 (Philadelphia, Whitehall 1799) (1756).
46. ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 12 (1975).
47. 2 RUTHERFORTH, supra note 39, at 302.
48. JAMES WILSON, Of the Study of Law in the United States, in 1 THE WORKS OF JAMES WILSON 69, 75 (Robert Green McCloskey ed., 1967).
49. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 892 (1985).
50. Id.
51. Id. at 891.
52. RAKOVE, supra note 4, at 148.
53. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 298 (1969).
54. RAOUL BERGER, CONGRESS V. THE SUPREME COURT 85-87 (1969).
55. RAKOVE, supra note 4, at 149.
56. Id. at 17.
57. THE FEDERALIST NO. 78, at 532 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
58. JAMES WILSON, Of Government, in 1 THE WORKS OF JAMES WILSON, supra note 42, at 284, 292-93.
59. H. Jefferson Powell, The Modern Misunderstanding of Original Intent, 54 U. CHI. L. REV. 1513, 1533, 1534, 1538 (1987) (emphasis added).
60. Powell, supra note 43, at 899.
61. But Powell pulls back: "[E]xisting rules of statutory construction permitted looking beyond the text for 'reasonable evidence' of its meaning, though again this ordinarily meant attempting to 'read acts of Parliament against the background of the common law.'" RAKOVE, supra note 4, at 352 (emphasis added). "Beyond the text" contradicts his assertion that interpretation was confined to the text.
62. HATTON, supra note 30 and accompanying text (emphasis added).
63. A DISCOURSE, supra note 29, at 60 n.126.
64. ALEXANDER HAMILTON, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 PAPERS OF ALEXANDER HAMILTON 97, 111 (Harold C. Syrett et al. eds., 1965). In 1791 Hamilton pretended to find the facts confused. Id. But see infra text accompanying notes 90-93 for the facts of the bank debate.
65. RAKOVE, supra note 4, at 357 (quoting ALEXANDER HAMILTON, The Defence, in 10 PAPERS OF ALEXANDER HAMILTON, supra note 58, at 22). Another example of Hamilton's change of position: he had once stated that Senate approval was necessary for removal of an appointed official. THE FEDERALIST NO. 77, at 515 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). When William Smith cited this passage, he was shocked to learn that Hamilton had changed his mind - the President alone should have this power. Smith significantly added: "He is a Candidate for the office of Secretary of Finance!" RAKOVE, supra note 4, at 350
66. (quoting William Smith, Smith to Rutledge, 8 S.C. HIST. MAG. 69, 70 (1968)).
67. Powell, supra note 43, at 895 (quoting 1 JOHN JOSEPH POWELL, ESSAY UPON THE LAW OF CONTRACTS AND AGREEMENTS 373 (London 1790)).
68. Id. at 894 (quoting Hewet v. Painter, 80 Eng. Rep. 864, 865 (K.B. 1611)).
69. Id.
70. Oregon v. Mitchell, 400 U.S. 112, 200 (1970) (Harlan, J., dissenting). The French savant, Raymond Aron, wrote that a proposition "justifies itself by the falseness of the beliefs that oppose it." Raymond Aron, Pensées, N.Y. TIMES, Oct. 23, 1983, at E19. In the First Congress Fisher Ames said, "nearly as good conclusions may be drawn from the refutations of an argument as from any other proof. For it is well said, that destructio unius est generatio alterius." 1 ANNALS OF THE CONGRESS OF THE UNITED STATES: THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 539 (Joseph Gales ed., 2d ed. 1834) [hereinafter ANNALS OF THE CONGRESS].
71. Oregon v. Mitchell, 400 U.S. 112, 200 (1970) (Harlan, J., dissenting). The French savant, Raymond Aron, wrote that a proposition "justifies itself by the falseness of the beliefs that oppose it." Raymond Aron, Pensées, N.Y. TIMES, Oct. 23, 1983, at E19. In the First Congress Fisher Ames said, "nearly as good conclusions may be drawn from the refutations of an argument as from any other proof. For it is well said, that destructio unius est generatio alterius." 1 ANNALS OF THE CONGRESS OF THE UNITED STATES: THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 539 (Joseph Gales ed., 2d ed. 1834) [hereinafter ANNALS OF THE CONGRESS].
72. Raoul Berger, "Original Intention" in Historical Perspective, 54 GEO. WASH. L. REV. 296 (1986); Raoul Berger, The Founders' Views - According to Jefferson Powell, 67 TEX. L. REV. 1033 (1989); see also Raoul Berger, Original Intent: The Rage of Hans Baade, 71 N.C. L. REV. 1151 (1993). Powell acknowledges that "it is natural, inevitable, and appropriate that we should look to the founders for enlightenment." H. Jefferson Powell, How Does the Constitution Structure Government? The Founders' Views, in A WORKABLE GOVERNMENT? THE CONSTITUTION AFTER 200 YEARS 13, 15 (Burke Marshall ed., 1987).
73. Raoul Berger, "Original Intention" in Historical Perspective, 54 GEO. WASH. L. REV. 296 (1986); Raoul Berger, The Founders' Views - According to Jefferson Powell, 67 TEX. L. REV. 1033 (1989); see also Raoul Berger, Original Intent: The Rage of Hans Baade, 71 N.C. L. REV. 1151 (1993). Powell acknowledges that "it is natural, inevitable, and appropriate that we should look to the founders for enlightenment." H. Jefferson Powell, How Does the Constitution Structure Government? The Founders' Views, in A WORKABLE GOVERNMENT? THE CONSTITUTION AFTER 200 YEARS 13, 15 (Burke Marshall ed., 1987).
74. Raoul Berger, "Original Intention" in Historical Perspective, 54 GEO. WASH. L. REV. 296 (1986); Raoul Berger, The Founders' Views - According to Jefferson Powell, 67 TEX. L. REV. 1033 (1989); see also Raoul Berger, Original Intent: The Rage of Hans Baade, 71 N.C. L. REV. 1151 (1993). Powell acknowledges that "it is natural, inevitable, and appropriate that we should look to the founders for enlightenment." H. Jefferson Powell, How Does the Constitution Structure Government? The Founders' Views, in A WORKABLE GOVERNMENT? THE CONSTITUTION AFTER 200 YEARS 13, 15 (Burke Marshall ed., 1987).
75. Raoul Berger, "Original Intention" in Historical Perspective, 54 GEO. WASH. L. REV. 296 (1986); Raoul Berger, The Founders' Views - According to Jefferson Powell, 67 TEX. L. REV. 1033 (1989); see also Raoul Berger, Original Intent: The Rage of Hans Baade, 71 N.C. L. REV. 1151 (1993). Powell acknowledges that "it is natural, inevitable, and appropriate that we should look to the founders for enlightenment." H. Jefferson Powell, How Does the Constitution Structure Government? The Founders' Views, in A WORKABLE GOVERNMENT? THE CONSTITUTION AFTER 200 YEARS 13, 15 (Burke Marshall ed., 1987).
76. RAKOVE, supra note 4, at 12. "[H]onest verification . . . is the very essence of science . . . ." SULLIVAN, supra note 12, at 164.
77. 1993 App. Cas. 593 (H.L. 1992).
78. Id. at 635.
79. RAKOVE, supra note 4, at xv.
80. Id. at xiv.
81. Id. at 134.
82. Id. at 340 (emphasis added) (quoting ROBERT H. BORK, THE TEMPTING OF AMERICA 144 (1990)).
83. See Berger, supra note 11.
84. Willard Hurst, The Process of Constitutional Construction, in SUPREME COURT AND SUPREME LAW 55, 57 (Edmund Cahn, ed., 1954).
85. 2 RECORDS, supra note 7, at 183.
86. Id. at 392.
87. THE FEDERALIST NO, 75, at 488 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
88. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 306 (Jonathan Elliot ed., 1941 reproduction of 2d ed. 1836) [hereinafter DEBATES ON ADOPTION].
89. Id. at 506. Rakove notes that "Madison and other framers 'certainly knew what they . . . intended' at Philadelphia when they defended the treaty power in the state conventions." RAKOVE, supra note 4, at 359 (quoting 5 ANNALS OF CONGRESS, supra note 63, at 523). But he argues that in the debate on the Jay Treaty, "they had never answered objections to the treaty clause with [Madison's] theory." Id. An omission in a partisan political struggle to cite one or another theory does not alter the facts. Hamilton's spokesman [William Smith] "appeal[ed] to the general sense of the whole Nation at the time the Constitution was formed," noting that through these "contemporaneous expositions," formed "when the subject was viewed only in relation to the abstract power, and not to a particular [intensely unpopular] Treaty, we should come at the truth." Id. (quoting 5 ANNALS OF CONGRESS, supra note 63, at 495). Rakove would dispose of such statements because they were motivated by considerations of partisan advantage. He does not, however, disqualify partisan advantage when it favors his position. Would he maintain that President Washington's appeal to the Journal of the Convention - to show that the House was not included in the treaty-making process - was equally "heated . . . by faction"? Id. at 349
90. Id. at 506. Rakove notes that "Madison and other framers 'certainly knew what they . . . intended' at Philadelphia when they defended the treaty power in the state conventions." RAKOVE, supra note 4, at 359 (quoting 5 ANNALS OF CONGRESS, supra note 63, at 523). But he argues that in the debate on the Jay Treaty, "they had never answered objections to the treaty clause with [Madison's] theory." Id. An omission in a partisan political struggle to cite one or another theory does not alter the facts. Hamilton's spokesman [William Smith] "appeal[ed] to the general sense of the whole Nation at the time the Constitution was formed," noting that through these "contemporaneous expositions," formed "when the subject was viewed only in relation to the abstract power, and not to a particular [intensely unpopular] Treaty, we should come at the truth." Id. (quoting 5 ANNALS OF CONGRESS, supra note 63, at 495). Rakove would dispose of such statements because they were motivated by considerations of partisan advantage. He does not, however, disqualify partisan advantage when it favors his position. Would he maintain that President Washington's appeal to the Journal of the Convention - to show that the House was not included in the treaty-making process - was equally "heated . . . by faction"? Id. at 349
91. . 79. Id. at 9. Thus, Rakove adverts to a "deeper conceptual ambiguity about the nature of statehood itself. What, after all, was a state," id. at 166, a question which the Founders did not pause to ask. The thirteen colonies had existed as entities with more or less defined territorial boundaries and with instrumentalities of government, for example, assemblies. As Rakove himself said, "A new condition demanded a new name." Id. The colonies had functioned as societies and continued to do so without a hitch. James Bryce observed that "the Americans had no theory of the state, and felt no need for one, being content, like the English, to base their constitutional ideas upon law and history." JAMES BRYCE, THE AMERICAN COMMONWEALTH 1210 (Liberty Classics ed. 1995) (1888). To fall into a brown study about the nature of statehood under the circumstances is to engage in pretentious punditry.
92. EDWARD S. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 10 (Peter Smith 1963) (1914).
93. Id. at 11-13; see also BERGER, supra note 48, at 47-119.
94. 3 DEBATES ON ADOPTION, supra note 77, at 553.
95. 3 id. at 443.
96. 3 id. at 523.
97. 3 id. at 570.
98. 3 id. at 532.
99. 3 id. at 540-41.
100. 2 id. at 196.
101. 2 id. at 445-46.
102. RAKOVE, supra note 4, at 355.
103. 2 RECORDS, supra note 7, at 616. Rakove dismisses this history because "Madison did not claim that this tidbit of history was conclusive in itself." RAKOVE, supra note 4, at 352. By this logic original intention is not to be given effect unless the speaker paused to testify that it should!
104. 3 RECORDS, supra note 7, at 375.
105. Id. at 376.
106. RAKOVE, supra note 4, at 8.
107. Id. at 11.
108. See id. at 28, 40. "From the beginning, the foreign trade of the United States was near the core of its foreign policy." LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 69 (1972).
109. 2 RECORDS, supra note 7, at 306.
110. Id. at 307.
111. Id. at 588-89.
112. Id. at 308.
113. Id. at 359-60.
114. Thomas Jefferson, Opinion on the Constitutionality of the Bank, in DOCUMENTS OF AMERICAN HISTORY 158, 159 (Henry Steele Commager ed., 7th ed. 1963) (ellipsis in Commager edition).
115. Letter from Madison to J.C. Cabell (Feb. 13, 1829), in 3 RECORDS, supra note 7, at 478.
116. Powell, supra note 43, at 934. In his Inaugural Address, President Jefferson pledged to administer the Constitution "according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption - a meaning to be found in the explanations of those who advocated . . . it." 4 DEBATES ON ADOPTION, supra note 77, at 446 (emphasis omitted).
117. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838); see also Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 463 (1854).
118. Powell, supra note 43, at 947.
119. CONG. GLOBE, 39th Cong., 1st Sess. 677 (1866).
120. CONG. GLOBE, 42d Cong., 1st Sess. 115 (1871), reprinted in THE RECONSTRUCTION AMENDMENTS' DEBATES 506 (Alfred Avins ed., 1967) [hereinafter DEBATES ON RECONSTRUCTION].
121. CONG. GLOBE, 42d Cong., 1st Sess. 115 (1871), reprinted in THE RECONSTRUCTION AMENDMENTS' DEBATES 506 (Alfred Avins ed., 1967) [hereinafter DEBATES ON RECONSTRUCTION].
122. Id. at 152, reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 528.
123. S. REP. NO. 21, at 2 (1872), reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 571. Writing in 1939, tenBroek said that the Court "has insisted with almost uninterrupted regularity, that the end and object of constitutional construction is the discovery of the intention of those persons who formulated the instrument." Jacobus tenBroek, Use by the Supreme Court of Extrinsic Aids in Constitutional Construction: The Intent Theory of Constitutional Construction, 27 CAL. L. REV. 399, 399 (1939).
124. S. REP. NO. 21, at 2 (1872), reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 571. Writing in 1939, tenBroek said that the Court "has insisted with almost uninterrupted regularity, that the end and object of constitutional construction is the discovery of the intention of those persons who formulated the instrument." Jacobus tenBroek, Use by the Supreme Court of Extrinsic Aids in Constitutional Construction: The Intent Theory of Constitutional Construction, 27 CAL. L. REV. 399, 399 (1939).
125. Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring). The one man-one vote rulings rest "on the view that the courts are authorized to step in when injustices exist and other institutions fail to act. This is a dangerous - and I think illegitimate - prescription for judicial action." Gerald Gunther, Some Reflections on the Judicial Role: Distinctions, Roots and Prospects, 1979 WASH. U. L.Q. 817, 825.
126. CONG. GLOBE, 39th Cong., 1st Sess. 3039 (1866), reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 237.
127. CONG. GLOBE, 39th Cong., 1st Sess. 3039 (1866), reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 237.
128. S. REP. NO. 112, at 8 (1866), reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 94.
129. Raoul Berger, The Fourteenth Amendment: Light from the Fifteenth, 74 NW. U. L. REV. 311, 321-23 (1979).
130. Oregon v. Mitchell, 400 U.S. 112, 203 (1970) (Harlan, J., dissenting in part).
131. Michael McConnell, Originalism and the Desegregation Decision, 81 VA. L. REV. 947 (1995).
132. 2 RICHARD KLUGER, SIMPLE JUSTICE 646 (1976).
133. Alfred H. Kelly, The Fourteenth Amendment Reconsidered: The Segregation Question, 54 MICH. L. REV. 1049, 1085 (1956).
134. CONG. GLOBE, 39th Cong., 1st Sess. 1117 (1866), reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 163.
135. CONG. GLOBE, 39th Cong., 1st Sess. 1117 (1866), reprinted in DEBATES ON RECONSTRUCTION, supra note 108, at 163.
136. See generally McConnell, supra note 116.
137. Id. at 952.
138. RAKOVE, supra note 4, at 163.
139. Id. at 9.
140. Id. at 188.
141. Id. at 163 (emphasis added). Earlier, Rakove had considered that the States were "'a creation of the Continental Congress which preceded them in time and brought them into being.'" JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS 173 n.* (1979) (quoting Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty over Seabeds, 74 COLUM. L. REV. 1057, 1057 (1974)). Now, he confirms that: "[t]he Confederation that Congress proposed in November 1777 was a compact among thirteen autonomous states," RAKOVE, supra note 4, at 100, and that "[t]he existence of the [S]tates was simply a given fact of American governance, and it confronted the framers at every stage of their deliberations." Id. at 162. For detailed confirmation, see RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 21-47 (1987).
142. Id. at 163 (emphasis added). Earlier, Rakove had considered that the States were "'a creation of the Continental Congress which preceded them in time and brought them into being.'" JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS 173 n.* (1979) (quoting Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty over Seabeds, 74 COLUM. L. REV. 1057, 1057 (1974)). Now, he confirms that: "[t]he Confederation that Congress proposed in November 1777 was a compact among thirteen autonomous states," RAKOVE, supra note 4, at 100, and that "[t]he existence of the [S]tates was simply a given fact of American governance, and it confronted the framers at every stage of their deliberations." Id. at 162. For detailed confirmation, see RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 21-47 (1987).
143. Id. at 163 (emphasis added). Earlier, Rakove had considered that the States were "'a creation of the Continental Congress which preceded them in time and brought them into being.'" JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS 173 n.* (1979) (quoting Richard B. Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty over Seabeds, 74 COLUM. L. REV. 1057, 1057 (1974)). Now, he confirms that: "[t]he Confederation that Congress proposed in November 1777 was a compact among thirteen autonomous states," RAKOVE, supra note 4, at 100, and that "[t]he existence of the [S]tates was simply a given fact of American governance, and it confronted the framers at every stage of their deliberations." Id. at 162. For detailed confirmation, see RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 21-47 (1987).
144. RAKOVE, supra note 4, at 168 (emphasis in original). Rakove proves himself an "ingenious theorist" who, in Madison's words, would bestow on the Constitution an "abstract view . . . planned in his closet or in his imagination." Id.
145. Id. at 163; cf. supra note 125.
146. See supra text accompanying note 125.
147. See infra text accompanying notes 146-58.
148. RAKOVE, supra note 4, at 163.
149. Chief Justice Marshall alluded to "that immense mass of legislation . . . not surrendered to the general government." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).
150. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 543 (1954). Wechsler echoed Walter Bagehot: Americans "altogether retained what . . . they could not help, the sovereignty of the separate States . . . . Doubtless the framers of the Constitution had no choice in the matter." NORMAN ST. JOHN STEVAS, WALTER BAGEHOT 358-59 (1950). Today, States' rights are in ill repute, but Henry Adams concluded, "The doctrine of states' rights was in itself a sound and true doctrine; as a starting point of American history and constitutional law there is no other which will bear a moment's examination . . . ." HENRY ADAMS, JOHN RANDOLPH 273 (Boston, Houghton, Mifflin & Co. 1882). Writing to General Robert E. Lee after the Civil War, Lord Acton described the preservation of the States as "the redemption of democracy." ROBERT SPEAIGHT, THE LIFE OF HILAIRE BELLOC 132 (1957).
151. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 543 (1954). Wechsler echoed Walter Bagehot: Americans "altogether retained what . . . they could not help, the sovereignty of the separate States . . . . Doubtless the framers of the Constitution had no choice in the matter." NORMAN ST. JOHN STEVAS, WALTER BAGEHOT 358-59 (1950). Today, States' rights are in ill repute, but Henry Adams concluded, "The doctrine of states' rights was in itself a sound and true doctrine; as a starting point of American history and constitutional law there is no other which will bear a moment's examination . . . ." HENRY ADAMS, JOHN RANDOLPH 273 (Boston, Houghton, Mifflin & Co. 1882). Writing to General Robert E. Lee after the Civil War, Lord Acton described the preservation of the States as "the redemption of democracy." ROBERT SPEAIGHT, THE LIFE OF HILAIRE BELLOC 132 (1957).
152. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 543 (1954). Wechsler echoed Walter Bagehot: Americans "altogether retained what . . . they could not help, the sovereignty of the separate States . . . . Doubtless the framers of the Constitution had no choice in the matter." NORMAN ST. JOHN STEVAS, WALTER BAGEHOT 358-59 (1950). Today, States' rights are in ill repute, but Henry Adams concluded, "The doctrine of states' rights was in itself a sound and true doctrine; as a starting point of American history and constitutional law there is no other which will bear a moment's examination . . . ." HENRY ADAMS, JOHN RANDOLPH 273 (Boston, Houghton, Mifflin & Co. 1882). Writing to General Robert E. Lee after the Civil War, Lord Acton described the preservation of the States as "the redemption of democracy." ROBERT SPEAIGHT, THE LIFE OF HILAIRE BELLOC 132 (1957).
153. RAKOVE, supra note 4, at 15.
154. GARY L. MCDOWELL, THE CONSTITUTION AND CONSTITUTIONAL THEORY 13 (1985).
155. RAKOVE, supra note 4, at 95.
156. Id. at 302. Madison wrote in 1788 that "'a spirit of locality' permeated American politics." WOOD, supra note 47, at 195. Bagehot observed, "[a]t the beginning of every league the separate States are the old governments which attract and keep the love and loyalty of the people; the Federal Government is a useful thing, but new and unattractive." STEVAS, supra note 132, at 359. Seeking to account for Southern sentiment during the Civil War, Nathaniel Hawthorne wrote, "We inevitably limit to our own State . . . that sentiment of physical love for the soil . . . ." Nathaniel Hawthorne, Henry James, in THE SHOCK OF RECOGNITION 427, 561 (Edmund Wilson ed., 1943).
157. RAKOVE, supra note 4, at 28-29.
158. CARL VAN DOREN, THE GREAT REHEARSAL: THE STORY OF THE MAKING AND RATIFYING OF THE CONSTITUTION OF THE UNITED STATES 45 (1948).
159. Id. at 15.
160. 1 RECORDS, supra note 7, at 173.
161. 4 DEBATES ON ADOPTION, supra note 77, at 313.
162. BENJAMIN FLETCHER WRIGHT, CONSENSUS AND CONTINUITY, 1776-1787, at 55 (1958).
163. Cecelia M. Kenyon, Introduction to THE ANTIFEDERALISTS at 1xxxvi (Cecelia M. Kenyon ed., 1966).
164. 3 RECORDS, supra note 7, at 51.
165. Resolution for Independence, in DOCUMENTS OF AMERICAN HISTORY 100, 100 (Henry Steele Commager ed., 6th ed. 1958) (emphasis added) [hereinafter DOCUMENTS].
166. SAUL K. PADOVER, JEFFERSON 61 (1942); see also THE DECLARATION OF INDEPENDENCE, reprinted in DOCUMENTS, supra note 145, at 100, 102.
167. SAUL K. PADOVER, JEFFERSON 61 (1942); see also THE DECLARATION OF INDEPENDENCE, reprinted in DOCUMENTS, supra note 145, at 100, 102.
168. THE ARTICLES OF CONFEDERATION, reprinted in DOCUMENTS, supra note 145, at 111.
169. Id.
170. Id.
171. Id. at 115-16.
172. By Article I, Britain "acknowledged the said United States, viz. New Hampshire, Massachusetts," and so down the roster, to be "sovereign and independent States," and provided by Article V that British subjects could freely go to "any of the thirteen United States." Treaty of Peace with Great Britain (Sept. 3, 1783), reprinted in DOCUMENTS, supra note 145, at 117, 119.
173. 1 RECORDS, supra note 7, at 500.
174. BERGER, supra note 125, at 27-30.
175. THE FEDERALIST NO. 39, at 254 (James Madison) (Jacob E. Cooke ed., 1961).
176. "Compact" imagery "dominated American thinking." RAKOVE, supra note 4, at 320. Early in the Convention Madison said: [A]s far as the articles of Union [Constitution] were to be considered a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons . . . it is indispensable that the New Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves. 1 RECORDS, supra note 7, at 122-23.
177. The past, Chief Justice Marshall wrote, "cannot be recalled by the most absolute power." Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810); see also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940). Rakove writes in a footnote: "[T]heorists argued that the states that had been the parties to the original compact retained a sovereign right to reverse their decision." Rakove asserts, "Amazingly enough, vestiges of that debate are still heard today. See Raoul Berger, Federalism: The Founders' Design (1987)." RAKOVE, supra note 4, at 372 n.12. Nowhere have I ever defended secession. To demonstrate the irrefutable fact that there was a compact is to be true to Ranke's injunction to tell it as it was. It is Rakove who would rewrite history to conform to his predilictions.
178. RAKOVE, supra note 4, at 162 (emphasis added). The conservatives were political realists and had to compromise with the political reality of actual state sovereignty. See MERRILL JENSEN, THE ARTICLES OF CONFEDERATION 24 (1940).
179. RAKOVE, supra note 4, at 105 (quoting 2 RECORDS, supra note 7, at 476).
180. PENNSYLVANIA AND THE FEDERAL CONSTITUTION 1787-88, at 316 (John Bach McMaster & Frederick D. Stone eds., The Historical Society of Pennsylvania 1888).
181. Id. at 302. The maxim that "all Government originates from the people" was "widely accepted by almost every one." WOOD, supra note 47, at 330.
182. 2 DEBATES ON ADOPTION, supra note 77, at 355-56; see also RAKOVE, supra note 4, at 190.
183. RAKOVE, supra note 4, at 200 (quoting THE FEDERALIST NO. 10, at 61 (James Madison) (Jacob E. Cooke ed., 1961)).
184. Id. at 190.
185. As further evidence of Rakove's flawed judgment, consider an incident he recounts. A fellow political scientist had written flatteringly to him and "earns [his] profound thanks for this sentence: 'If according to Madison, Tocqueville, Rakove . . . .'" Id. at 277 n.99. In publishing his "profound thanks" he intimates that ranking him with Madison is his just due. 165. Id. at 178.
186. Id. at 179.
187. Id. at 177.
188. Id. at 179.
189. Id. (quoting 2 RECORDS, supra note 1, at 198).
190. Id. (quoting 2 RECORDS, supra note 7, at 275).
191. Martin Shapiro, American Federalism, in CONSTITUTIONAL GOVERNMENT IN AMERICA 359, 360, 367 (Ronald K.L. Collins ed., 1980); ALPHEUS THOMAS MASON, THE STATES RIGHTS DEBATE: ANTIFEDERALISTS AND THE CONSTITUTION 50 (1964).
192. Martin Shapiro, American Federalism, in CONSTITUTIONAL GOVERNMENT IN AMERICA 359, 360, 367 (Ronald K.L. Collins ed., 1980); ALPHEUS THOMAS MASON, THE STATES RIGHTS DEBATE: ANTIFEDERALISTS AND THE CONSTITUTION 50 (1964).
193. 1 HOLMES-LASKI LETTERS 331 (Mark DeWolfe Howe ed., 1953).
194. Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 441 (1827).
195. MASON, supra note 171, at 12 (quoting 1 THE WORKS OF JAMES WILSON 565 (James DeWitt Andrews ed., 1896)).
196. 1 RECORDS, supra note 7, at 133.
197. THE FEDERALIST NO. 39, at 256 (James Madison) (Jacob E. Cooke ed., 1961).
198. THE FEDERALIST NO. 45, at 313 (James Madison) (Jacob E. Cooke ed., 1961); see also MERRILL PETERSON, THOMAS JEFFERSON AND THE NEW NATION 627 (1970): "The true theory of our Constitution is . . . that the states are independent as to everything within themselves, and united as to everything respecting foreign nations."
199. THE FEDERALIST NO. 84, at 579 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
200. THE FEDERALIST NO. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (emphasis omitted).
201. RAKOVE, supra note 4, at 317.
202. THE FEDERALIST NO. 39, at 256 (James Madison) (Jacob E. Cooke ed., 1961).
203. 2 DEBATES ON ADOPTION, supra note 77, at 356.
204. THE FEDERALIST NO. 33, at 207 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (emphasis omitted).
205. BRYCE, supra note 79, at 375.
206. RAKOVE, supra note 4, at 345 (emphasis added); see also BRYCE, supra note 79, at 1496.
207. Letter from James Madison to Judge Roane (May 6, 1821), in 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON 217 (New York, R. Worthington 1884) (1865).
208. PHILIP B. KURLAND, WATERGATE AND THE CONSTITUTION 156-57 (1978).
209. RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 195 (1985).
210. But see RAOUL BERGER, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1989).
211. ALPHEUS THOMAS MASON, BRANDEIS: A FREE MAN'S LIFE 558 (1946).
212. RAKOVE, supra note 4, at 17.
213. Id. at 357.
214. Id. "[B]y 1796 the politics of opposition had placed Madison in a position he had never expected to occupy, [that is,] the powers of the House had . . . to be extended." Id. at 364.
215. Id. at 360; see also 2 DEBATES ON ADOPTION, supra note 77, at 506; 3 DEBATES ON ADOPTION, supra note 77, at 509.
216. RAKOVE, supra note 4, at 349.
217. "Without [Madison's] notes of debates, it would be nearly impossible to frame more than a bare bones account of how the Constitution took shape." Id. at 4.
218. Id. at 13.
219. Id.
220. Id.
221. Id. at 149.
222. Id. at 149-50 (emphasis omitted).
223. LEONARD LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 17 (1988).
224. Id. at 5.
225. For citations, see Raoul Berger, Original Intent and Leonard Levy, 42 RUTGERS L. REV. 255, 260 n.38 (1989).
226. Raoul Berger, Original Intent in Historical Perspective, 54 GEO. WASH. L. REV. 296, 327-28 (1986).
227. For citations, see Berger, supra note 204, at 261 n.41.
228. RAKOVE, supra note 4, at 16, 115, 155, 191, 319.
229. Id. at 13.
230. Willard Hurst, Discussion, in SUPREME COURT AND SUPREME LAW, supra note 23, at 75.
231. RAKOVE, supra note 4, at xiii.
232. Id. at 368.
233. Id. at 367-68.
234. Id. Rakove would bring to "constitutional interpretation a rigor it often lacks." Id. at 11. He stresses the "value of thinking rigorously." Id. at 8.
235. McPherson v. Blacker, 146 U.S. 1, 36 (1892); see also Ullmann v. United States, 350 U.S. 422, 428 (1950).
236. Quoted by Chief Justice Hughes in Home Bldg. Loan Ass'n v. Blaisdell, 290 U.S. 398, 442-43 (1934) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 415 (1819) (emphasis in original)).
237. JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 185 (Gerald Gunther ed., 1969) (emphasis added).
238. Id. at 209.
239. Griswold v. Connecticut, 381 U.S. 479, 522 (1965) (Black, J., dissenting). Gerald Gunther rejected the view that courts are authorized to step in when injustice exists and other institutions fail to act. Gunther, supra note 111. A power that cannot be delegated to another branch cannot be assumed by it.
240. Thus Erwin Chemerinsky applauds the "constitutional changes wrought by the modern Court," but deplores its many "wrong turns and missed opportunities." Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992); see also Lawrence B. Solum, Foreword: History, Fable and Constitutional Interpretation, 25 LOY. L.A. L. REV. 1135, 1136 (1992).
241. Thus Erwin Chemerinsky applauds the "constitutional changes wrought
242. Frank H. Easterbrook, Abstraction and Authority, 59 U. CHI. L. REV. 349, 368 (1992). Madison stated in the Convention that "it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence." 2 RECORDS, supra note 7, at 92-93.
243. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803).
244. PAUL A. FREUND, ON LAW AND JUSTICE 35 (1968). Activist Arthur Miller considers that the Justices have not been prepared "for the task of constitutional interpretation." Arthur S. Miller, The Elusive Search for Values in Constitutional Interpretations, 6 HASTINGS CONST. L.Q. 487, 500 (1979). Few have "the broad-gauged approach and knowledge," Miller adds, essential to "search for and identify the values that should be sought in constitutional adjudication." Id. at 507.
245. PAUL A. FREUND, ON LAW AND JUSTICE 35 (1968). Activist Arthur Miller considers that the Justices have not been prepared "for the task of constitutional interpretation." Arthur S. Miller, The Elusive Search for Values in Constitutional Interpretations, 6 HASTINGS CONST. L.Q. 487, 500 (1979). Few have "the broad-gauged approach and knowledge," Miller adds, essential to "search for and identify the values that should be sought in constitutional adjudication." Id. at 507.
246. KURLAND, supra note 187, at 7. 224. Marbury, 5 U.S. at 176.
247. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 355 (1827).
248. 1 STORY, supra note 17, § 426; see also Hawke v. Smith, 253 U.S. 221, 227 (1920); South Carolina v. United States, 199 U.S. 437, 448-49 (1905); 1 THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 123-24 (Walter Carrington ed., 8th ed. 1927).
249. "Anti-Federalist fears were part of the original understanding of the Constitution . . . . [T]hey influenced the arguments that were made in its support . . . ." RAKOVE, supra note 4, at 17. For example, The Federalist No. 78 patently was designed to counter "Brutus's" penetrating analysis of the judiciary Article. THE FEDERALIST NO. 78 (Alexander Hamilton).
250. RAKOVE, supra note 4, at 343, notes the "arguments most likely to influence the course of ratification."
251. 2 STORY, supra note 17, § 1084. "If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?" Id.
252. RAKOVE, supra note 4, at xv n.*.
253. Cass R. Sunstein, Earl Warren Is Dead, NEW REPUBLIC, May 13, 1996, at 35, 37. Sunstein observes that the people have a "right to democratic government . . . and judicial use of abstract moral principles may well intrude on [that] right." Id. Justice Frankfurter explained that "[t]he reason why from the beginning even the narrow judicial authority to nullify legislation had been viewed with a jealous eye in that it serves to prevent the full play of the democratic process." West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 650 (1943) (Frankfurter, J., dissenting). For elaboration of this view, see Henry Steele Commager, Judicial Review and Democracy, 19 VA. Q. REV. 417 (1943). With Leonard Levy, I agree that Eugene Rostow has failed to meet Commager. See Leonard W. Levy, Judicial Review, History, and Democracy: An Introduction, in JUDICIAL REVIEW AND THE SUPREME COURT 24 (Leonard W. Levy ed., 1967); Eugene V. Rostow, The Democratic Character of Judicial Review, 66 HARV. L. REV. 193 (1952).
254. Cass R. Sunstein, Earl Warren Is Dead, NEW REPUBLIC, May 13, 1996, at 35, 37. Sunstein observes that the people have a "right to democratic government . . . and judicial use of abstract moral principles may well intrude on [that] right." Id. Justice Frankfurter explained that "[t]he reason why from the beginning even the narrow judicial authority to nullify legislation had been viewed with a jealous eye in that it serves to prevent the full play of the democratic process." West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 650 (1943) (Frankfurter, J., dissenting). For elaboration of this view, see Henry Steele Commager, Judicial Review and Democracy, 19 VA. Q. REV. 417 (1943). With Leonard Levy, I agree that Eugene Rostow has failed to meet Commager. See Leonard W. Levy, Judicial Review, History, and Democracy: An Introduction, in JUDICIAL REVIEW AND THE SUPREME COURT 24 (Leonard W. Levy ed., 1967); Eugene V. Rostow, The Democratic Character of Judicial Review, 66 HARV. L. REV. 193 (1952).
255. Cass R. Sunstein, Earl Warren Is Dead, NEW REPUBLIC, May 13, 1996, at 35, 37. Sunstein observes that the people have a "right to democratic government . . . and judicial use of abstract moral principles may well intrude on [that] right." Id. Justice Frankfurter explained that "[t]he reason why from the beginning even the narrow judicial authority to nullify legislation had been viewed with a jealous eye in that it serves to prevent the full play of the democratic process." West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 650 (1943) (Frankfurter, J., dissenting). For elaboration of this view, see Henry Steele Commager, Judicial Review and Democracy, 19 VA. Q. REV. 417 (1943). With Leonard Levy, I agree that Eugene Rostow has failed to meet Commager. See Leonard W. Levy, Judicial Review, History, and Democracy: An Introduction, in JUDICIAL REVIEW AND THE SUPREME COURT 24 (Leonard W. Levy ed., 1967); Eugene V. Rostow, The Democratic Character of Judicial Review, 66 HARV. L. REV. 193 (1952).
256. THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776), reprinted in DOCUMENTS, supra note 145, at 100.
257. 2 GRIFFITH J. MCREE, LIFE AND CORRESPONDENCE OF JAMES IREDELL 146 (1857).
258. HAND, supra note 12, at 14.
259. Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 787 (1983).
260. Frank H. Easterbrook, The Influence of Judicial Review on Constitutional Theory, in A WORKABLE GOVERNMENT? THE CONSTITUTION AFTER 200 YEARS, supra note 64, at 172.
261. THE FEDERALIST NO. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
262. WOOD, supra note 47, at 298. RAKOVE, supra note 4, at 305, notes the "traditional bias against judges," and against "judicial discretion in interpreting the law."
263. Earl M. Maltz, Federalism and the Fourteenth Amendment: A Comment on "Democracy and Distrust", 42 OHIO ST. L.J. 209, 210 (1981). Lawrence Church, who is unsympathetic to originalism, recognizes that if judges "are not bound by the intent of the founders . . . then there may be no limits at all to their power." W. Lawrence Church, History and the Constitutional Role of the Courts, 1990 WIS. L. REV. 1071, 1087-88.
264. Earl M. Maltz, Federalism and the Fourteenth Amendment: A Comment on "Democracy and Distrust", 42 OHIO ST. L.J. 209, 210 (1981). Lawrence Church, who is unsympathetic to originalism, recognizes that if judges "are not bound by the intent of the founders . . . then there may be no limits at all to their power." W. Lawrence Church, History and the Constitutional Role of the Courts, 1990 WIS. L. REV. 1071, 1087-88.
265. Richard S. Kay, Book Review, 10 CONN. L. REV. 801, 805-06 (1978) (reviewing RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977)) (footnotes omitted). Sunstein regards the "impulse toward originalism in constitutional law . . . as a way of limiting judicial discretion and increasing the potential effect of moral and political deliberation in democratic arenas." Sunstein, supra note 231, at 37. I would add that judicial discretion is limited by age-old rules of construction. See THE FEDERALIST NO. 78, at 510 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); KENT, supra note 18; STORY, supra note 17, § 155 n.2. As a practical matter, resort to original intention "avoids uncertainty and arbitrariness and promotes predictability and consistent application." J.M. Balkin, Constitutional Interpretation and the Problem of History, 63 N.Y.U. L. REV. 911, 928-29 (1988) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)).
266. Richard S. Kay, Book Review, 10 CONN. L. REV. 801, 805-06 (1978) (reviewing RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977)) (footnotes omitted). Sunstein regards the "impulse toward originalism in constitutional law . . . as a way of limiting judicial discretion and increasing the potential effect of moral and political deliberation in democratic arenas." Sunstein, supra note 231, at 37. I would add that judicial discretion is limited by age-old rules of construction. See THE FEDERALIST NO. 78, at 510 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); KENT, supra note 18; STORY, supra note 17, § 155 n.2. As a practical matter, resort to original intention "avoids uncertainty and arbitrariness and promotes predictability and consistent application." J.M. Balkin, Constitutional Interpretation and the Problem of History, 63 N.Y.U. L. REV. 911, 928-29 (1988) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)).
267. Richard S. Kay, Book Review, 10 CONN. L. REV. 801, 805-06 (1978) (reviewing RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977)) (footnotes omitted). Sunstein regards the "impulse toward originalism in constitutional law . . . as a way of limiting judicial discretion and increasing the potential effect of moral and political deliberation in democratic arenas." Sunstein, supra note 231, at 37. I would add that judicial discretion is limited by age-old rules of construction. See THE FEDERALIST NO. 78, at 510 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); KENT, supra note 18; STORY, supra note 17, § 155 n.2. As a practical matter, resort to original intention "avoids uncertainty and arbitrariness and promotes predictability and consistent application." J.M. Balkin, Constitutional Interpretation and the Problem of History, 63 N.Y.U. L. REV. 911, 928-29 (1988) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)).
268. Richard S. Kay, Book Review, 10 CONN. L. REV. 801, 805-06 (1978) (reviewing RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977)) (footnotes omitted). Sunstein regards the "impulse toward originalism in constitutional law . . . as a way of limiting judicial discretion and increasing the potential effect of moral and political deliberation in democratic arenas." Sunstein, supra note 231, at 37. I would add that judicial discretion is limited by age-old rules of construction. See THE FEDERALIST NO. 78, at 510 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); KENT, supra note 18; STORY, supra note 17, § 155 n.2. As a practical matter, resort to original intention "avoids uncertainty and arbitrariness and promotes predictability and consistent application." J.M. Balkin, Constitutional Interpretation and the Problem of History, 63 N.Y.U. L. REV. 911, 928-29 (1988) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)).
269. RAKOVE, supra note 4, at 366.
270. Id. at xv n.*. Rakove prefers "claims of equality" to compliance with Article V. Id. at 368. This is advocacy of a cause. Peter Gay, the eminent historian, observed that one who approaches empirical data by way of a preconceived theoretical bias is a poor historian. See HISTORIANS AT WORK (Peter Gay & Victor G. Wexler eds., 1975).
271. Alfred Kelly, a historian, not a lawyer, recorded that he was retained in the desegregation case to file a historical brief for the NAACP. Alfred H. Kelly, The Fourteenth Amendment Reconsidered: The Segregation Question, 54 MICH. L. REV. 1049 (1956). He: manipulated history in the best tradition [?] of American advocacy, carefully marshalling every possible scrap of evidence in favor of the desired interpretation and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible. Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 116, 144. To my mind, Kelly aptly described Rakove's own course.
272. Alfred Kelly, a historian, not a lawyer, recorded that he was retained in the desegregation case to file a historical brief for the NAACP. Alfred H. Kelly, The Fourteenth Amendment Reconsidered: The Segregation Question, 54 MICH. L. REV. 1049 (1956). He: manipulated history in the best tradition [?] of American advocacy, carefully marshalling every possible scrap of evidence in favor of the desired interpretation and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible. Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 116, 144. To my mind, Kelly aptly described Rakove's own course.
273. Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1109 (1981). Commenting on some aspects of appeals to original intention during the Jay Treaty debate, RAKOVE, supra note 4, at 365, asserts that they were dictated "by considerations of partisan advantage." Appeals to the text of the Constitution may be open to the same objection.
274. RAKOVE, supra note 4, at 21.
275. THOMAS H. HUXLEY, EVIDENCE AS TO MAN'S PLACE IN NATURE (1863), quoted in HOMER W. SMITH, MAN AND HIS GODS 372 (1953). The historian has "a special obligation to sobriety and fidelity to the record." C. VANN WOODWARD, THE BURDEN OF SOUTHERN HISTORY 87 (1960).
276. THOMAS H. HUXLEY, EVIDENCE AS TO MAN'S PLACE IN NATURE (1863), quoted in HOMER W. SMITH, MAN AND HIS GODS 372 (1953). The historian has "a special obligation to sobriety and fidelity to the record." C. VANN WOODWARD, THE BURDEN OF SOUTHERN HISTORY 87 (1960).
277. THOMAS H. HUXLEY, EVIDENCE AS TO MAN'S PLACE IN NATURE (1863), quoted in HOMER W. SMITH, MAN AND HIS GODS 372 (1953). The historian has "a special obligation to sobriety and fidelity to the record." C. VANN WOODWARD, THE BURDEN OF SOUTHERN HISTORY 87 (1960).
278. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 855 (1989).
279. Earl M. Maltz, Murder in the Cathedral - The Supreme Court as Moral Prophet, 8 U. DAYTON L. REV. 623, 623 (1983).
280. Brest, supra note 244, at 1065. In The Federalist No. 38, Madison admonished critics that before discarding a proposed remedy they ought "at least agree among themselves on some other remedy to be substituted." THE FEDERALIST NO. 38, at 243 (James Madison) (Jacob E. Cooke ed., 1961). If "the Supreme Court's purpose is to establish justice without reference to the original intent of the framers, then what remains to circumscribe judicial power? Berger's critics have given singularly unsatisfactory answers to this question." Donald P. Kommers, Role of the Supreme Court, 1978 REV. POL. 409, 413 (reviewing RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977)).
281. Michael J. Perry, The Authority of Text, Tradition and Reason: A Theory of Constitutional Interpretation, 58 S. CAL. L. REV. 551, 602 (1985).
282. Allan C. Hutchinson, Alien Thoughts: A Comment on Constitutional Scholarship, 58 S. CAL. L. REV. 701, 701 (1985).
283. RAKOVE, supra note 4, at 368. Rakove suggests two possible reasons in the form of questions. The first is, do "we truly believe that language can only mean now what it meant then?" Id. That the terms of the Constitution must have a fixed meaning has been shown supra text accompanying notes 223-39. Jefferson regarded the "limits" of the Constitution as meant to "Bind [our delegates] down from mischief by the chains of the Constitution." 4 DEBATES ON ADOPTION, supra note 77, at 543. Rakove would transform those chains into ropes of sand with the object of turning over our destiny to the judiciary.
284. RAKOVE, supra note 4, at 340.
285. See supra text accompanying note 232.
286. THE FEDERALIST NO. 78, at 527-38 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
287. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
288. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 224 (1980).
289. Letter of the Massachusetts House to Lord Camden, in DOCUMENTS OF AMERICAN HISTORY 65 (Henry Steele Commager ed., 7th ed. 1963). Madison stated in the Convention that "[i]t would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence." 2 RECORDS, supra note 7, at 92-93.
290. See supra text accompanying note 220.
291. THE FEDERALIST NO. 25, at 163 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
292. Brest, supra note 257, at 234 (footnote omitted). Justice, then Professor, Hans Linde, wrote, "[t]his whole enterprise of constitutional law rests, after all, on the premise that the nation cares about its Constitution, not about its courts." Hans A. Linde, Judges, Critics, and the Realist Tradition, 82 YALE L.J. 227, 256 (1972).
293. The weight to be attached to this distillation of his experience is attested by Justice Story, a dedicated nationalist: Venerable, as he now is, from age and character, and absolved from all those political connections which may influence the judgment and mislead the mind, he speaks from his retirement in a voice which cannot be disregarded, when it instructs us by its profound reasoning, or admonishes us of our dangers by its searching appeals. 1 STORY, supra note 17, § 396.
294. Letter from James Madison to Henry Lee (June 25, 1824), in 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON, supra note 186, at 441. To the voice of Madison may be added that of Washington in his Farewell Address: "let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield." 35 THE WRITINGS OF GEORGE WASHINGTON 214, 229 (John C. Fitzpatrick ed., 1940) (citations omitted).
295. Letter from James Madison to Henry Lee (June 25, 1824), in 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON, supra note 186, at 441. To the voice of Madison may be added that of Washington in his Farewell Address: "let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield." 35 THE WRITINGS OF GEORGE WASHINGTON 214, 229 (John C. Fitzpatrick ed., 1940) (citations omitted).
296. RAKOVE, supra note 4, at 5 (footnote omitted).
297. Id. at 22.
298. Max Beloff, Arbiters of America's Destiny, TIMES HIGHER EDUC. SUPPLEMENT (London), Apr. 7, 1978, at 11.