Jack Rakove and Original Meanings: An Interview
An Interview with Jack Rakove, 1997 Pulitzer Prize winning author of Original Meanings: Politics and Ideas in the Making of the Constitution
Jack Rakove was born in Chicago in 1947. His father taught political science at the University of Illinois in Chicago. He was educated in Chicago public schools and graduated from Evanston Township High School. He earned his BA from Haverford College in 1968. After a stint in the Army Reserves and a few months working for the ACLU, he married and started graduate school at Harvard in the fall of 1969. He wasn't an early Americanist when he started studying; he first thought he would work on 20th century political history. Then he fell into the orbit of Dr. Bernard Bailyn, who became Rakove's mentor. He completed his dissertation on the Continental Congress in 1975. His first teaching job was at Colgate University in Hamilton, NY. His first book, The Beginnings of National Politics, was published by Knopf (who also published Original Meanings) in 1979 and was well received. After teaching at Colgate for 5 years, he went to Stanford University as an assistant professor in 1980. He is now a tenured professor of history at Stanford. He lives on Stanford with his wife, Helen, who is an attorney, and two sons. What about pets? Says Rakove, "No pets, my first job was cleaning cages in an animal hospital and we did have a family dog at the time but we've never had another one since." One morning in November, we enjoyed cups of steaming, freshly brewed coffee in a cozy shop near the Stanford campus. While it rained outside, we had a far-ranging conversation about the Pulitzer Prize, Original Meanings, history, and education.
SM) Dr. Rakove, how did you find out you had won the Pulitzer Prize?
JR) A week before the announcement, I had returned from teaching for a few months at Stanford's program in England. My editor, Jane Garrett, who has quite a distinguished record ó I'm her 7th Pulitzer ó told me the winners would be announced at about 3:00 in NY, about noon Pacific time. She said I was to stick by my phone and if something happened she'd give me a call. So, I was in my office doing my E-mail and noon kind of came and went. About ten after twelve, the phone rang and it was Jane. She said, "Jack, you got it!" Because she works out of western Massachusetts, it had taken her a few minutes to hear from New York and phone me.
I had planned to have lunch at 12:30 with a colleague of mine with whom I'm
editing a book, John Ferejohn. So at 12:30, John came by and we went down
to the political science lounge at Stanford. I had brought my own sandwich
to work but thought I needed to get something to celebrate, so I bought
a white chocolate chip cookie. When a reporter called me from the San
Francisco Chronicle and asked how I celebrated the good news, I said,
"I bought a cookie." That was why they ran that in the caption under my
SM) How has winning the 1997 Pulitzer Prize changed your life so far?
JR) I don't know that it's really changed my life much at all, except that it gives you this enormous sense of satisfaction, of accomplishment. I'd always hoped and thought that Original Meanings would be a fairly important book because of the issues it addresses both historical and contemporary. Having the Pulitzer gives it this kind of universal seal of approval which is a nice little add-on to have. I have picked up a few extra engagements from it and I suppose I'll pick up more.
My plate is full many times over, I could write books from now until the time I dropped which hopefully will be some time from now because I have a lot of projects I'd like to finish. When you reach age 50 you start realizing that you don't have an infinite amount of time to play with, not that I'm morbid about this, but I know there has to be an end somewhere. One of the most amazing things about Bailyn, he just turned 75 , and as I said in the essay I just wrote about him, he's really the youngest historian that I know because he's still tackling first order, research-driven projects. He's still excited about everything he does and pretty much everything that's going on in the field. I'd like to be in that position at age 75 and hope I will be.
SM) What was it about Original Meanings that you think helped win the Pulitizer Prize?
JR) Well, I think there are a couple of advantages it has, one is the subject. It is a basic subject in American History. It's so familiar it's easy to take for granted. On the other hand, if one has something new and important to say about something as fundamental as the Constitution and has a powerful way to say it, then that book should receive some attention. Probably two things really worked for Original Meanings. First, I invest a lot of myself in the writing, trying to make it a deeply serious book. When I say that, what I mean is that the enterprise in which the framers and the ratifiers of the Constitution were engaged is a deeply serious subject. I worked hard to convey what was at stake, how important people thought it was at the time, and why what they were doing was so momentous. I wanted to convey that in a powerful narrative to restore excitement to the original event and to get people to see the things they take for granted. Those things deserve a second and third look becaus
e much more was going on than we would assume because we're so familiar with the event.
The current debate about the role of original intent in Constitutional interpretation gave me, conceptually, a powerful vehicle, an important set of questions that I think most historians would not have thought to use. They look at the lawyers' debate and they think it's really about contemporary controversies and its all very political and it's not really the kind of thing we do. Some of us might choose to do it though it's not really a good historian's question but I thought maybe it was. I thought the legal and political figures who talk about this had raised an interesting problem, which is, if you want to talk about what did the Constitution originally mean, how would you do it? One can't just open up a text and say well Madison says this on Federalist 42 about Indian relations so, of course, that's what the Commerce Clause of Article I section 8 meant when it related to Indian Affairs. That's a kind of artificial historical question because it says, what does something mean in one particular m
oment? It seems artificial to me, because historians think that history never really stops, it's a continuous process. But I thought the lawyers were on to something interesting and historians had a responsibility to try to answer that question in the best way we can.
In Original Meanings, I set out to come up with a model, an analytical framework, for making sense of that debate and for advancing it. Advancing it doesn't mean I support originalism, it means I thought I could raise the debate to a higher level of intelligence if I explained why "What did the Constitution originally mean?" is such a complicated enterprise to talk about. Those are the two advantages, the deep seriousness of the subject and that the contemporary controversy gave me a novel and powerful framework to talk about an old set of questions that many of us have taken for granted as being essentially settled. I asked old-fashioned questions. I've always said I wanted my epitaph to read: "He tried to make the old history respectable again." I made it my ambition all along to give a new perspective to the subject and I hope I succeeded.
SM) What are the most significant contributions to the study of the Federal Convention of 1787 and the ratification of the Constitution made in Original Meanings?
JR) Well, I think there are two major contributions. The first is that I frame the convention, as I believe many historians have done, as essentially a story of two compromises over representation. One involving the small states and the large states, the so-called Great Compromise, and the other involving sectional compromises over slavery.
Typically both are portrayed in this way: we like the Great Compromise, which seems to us to have been a necessary political expedient because of the dynamics of the Convention; but we are much more troubled by the compromises over slavery because they seemed to lock slavery into the structure of American politics with disastrous consequences down the road.
In many ways, I really flip-flop or invert those preferences. In some ways I am much more troubled by the great compromise than I am by the compromises over slavery. I think the compromises over slavery were politically expedient, there was no other way to get a federal union than to give the South something on that issue. Slavery was a real interest, for better or worse, that had to be accommodated in the structure of American politics. The framers could not have abolished it by fiat because if they had tried to do that, the Constitution would never have been ratified. That doesn't mean I agree with all the compromises, the fugitive slave clause for example, or the extension of slave trade. Those I think weren't really necessary, and a harder stand by the northern delegates might have prevailed. (Georgia and South Carolina didn't have any other place to go.) But, a basic accommodation with the South over representation was necessary because if the founders had gone further in the anti-slavery di
rection, the Constitution would not have been accepted.
Regarding representation, it's always seemed to me that there's no really good reason why Wyoming should have two senators and California should have two. I think the arguments against equal state representation in the Senate are, normatively, very powerful arguments. I'm much struck by the way in which the delegates from the small states turned out to be better bluffers than the delegates from the large states. I think that's one of the interesting components of that chapter. We've talked about the two compromises, I think I have some new and interesting things to say about them, but I call to question the normal supposition about which one we ought to like and which one we ought to regret.
The other question is about ratification and one of the things that surprised me is that I wound up writing a whole chapter about the concept of ratification that I hadn't anticipated writing. I had to explain why it was that the framers developed the peculiar theory of Constitutional ratification that they did, where the idea came from, how they cleaved to it as successfully as they did in the course of the ratification conventions. It turns out to be a very important ideal to grasp. It's of fundamental importance to the whole process of Constitutional formation, especially the way in which the framers struggled very hard to say that the Constitution becomes supreme law because it had popular sovereignty on its side. On the other hand, popular sovereignty, the voice of the people, as it was expressed at the ratification conventions could say only one of two words. It could say "yes" or it could say "no." It couldn't say anything else. It couldn't vote on the Constitution clause by clause, article
by article. It couldn't make adopting the Constitution contingent upon the acceptance of certain amendments.
SM) Such as The Bill of Rights?
JR)Yes, and I have a revisionist comment here. The story that the Constitution was ratified because the Anti-Federalists extracted a promise to get a Bill of Rights, needs a good, serious, second look. I think the real reason we have a Bill of Rights is that Madison decided for political reasons that it had to be added to the Constitution. Most members of the first Federal congress didn't think that promise counted for very much.. To them it wasn't really a promise, it wasn't a contract. The Constitution was already ratified, most Federalists were indifferent to the inclusion of the Bill of Rights, it's really Madison who forces the whole idea of what he called the "nauseous project" (that's his language) down the throats of a very reluctant Congress. So the idea that there was actually a firm contract, a firm agreement to amend the Constitution needs a second look.
Secondly, even with or without that second serious look, the important thing here is not that a promise was extracted from the Federalists, the important thing is that the Federalists were able to preserve with a form of ratification that was crucial to their strategy. Their strategy was that the state conventions could recommend amendments until the cows came home, but they couldn't make their approval contingent upon the adoption of amendments. That was the crucial political step, the theoretical step the framers and the Federalists were acting on and that they managed to pull off. If you look at this on a state by state basis, the way in which they did it varies from one state to the other with the kind of matrix of local political factors at work. The Federalists goal always remains the same, though. It was really quite an impressive achievement.
I have another revisionist story to tell here and it's also a story that matters a lot to the debate over originalism. This is kind of a complicated point to explain. The theory of originalism in it's most robust form, its normative form, says the reason we ought to respect the original understandings or the original meaning of the Constitution is that it was adopted through some direct expression of popular sovereignty. That it was a form higher than what takes place when we ordinarily enact legislation. In other words, the Constitution is the supreme law not because it was proposed by a bunch of smart guys at Philadelphia but because it was ratified through this set of special procedures that they developed with state legislatures calling ratification conventions which would have one function only and which were therefore taken to be a direct expression of popular sovereignty. Well, if you think about it, that's a powerful argument. In one sense it's a very democratic argument, in another sense, it's a very anti-democratic argument. That is because there is one democratic majority, in fact several of them, constraining other democratic majorities in the present.
So, what are our controversies over the Constitution? Our controversies are not about whether the Constitution was adopted or whether we formed a more perfect union in 1787 and 1788 or again after the Civil War. Our controversies are about the meaning of particular clauses and provisions. What is an establishment of religion? What is the executive power? Is it Constitutional or not for us to have something like an Independent Counsel appointed by a kind of combination of judicial and executive actions? With the Independent Council not always directly accountable to the President, one asks, does the buck stop here, Chief Executive?
If we go back and look at the structure of decision making in 1787 and 1788, the framers and Federalists insist upon this up or down, binary-like vote on the Constitution in toto, accept or reject it in toto. One of the arguments in my book is, that makes it very difficult to disaggregate the overall decision of the Constitution into it's constituent elements on particular clauses. They weren't voting on particular clauses. They weren't recording their judgments on what the particular clauses mean. That procedural set of innovations that the framers developed seemed to me to pose a rather formidable objection to the whole theory of originalism because it creates what I call "the disaggregation problem". How do we break down that vote-for-a-more-perfect-union into those units of analysis of which we can speak with a great deal of confidence?
SM) The organization of the chapters are interesting. Would you explain your objectives for that?
JR) Well, I had two kinds of objectives in terms of thinking about the expository problems with the book. One was that I wanted to have a fairly clear political narrative about how the Constitution was adopted and ratified. That's essentially what the first six chapters do. I try to tell the overall story of how the Constitution was framed and adopted but also to set up some of the concerns that I come back and address in the 2nd half of the book. That's where I take the problems I associate with originalism, as my objective. Chapters 1-6 are telling a political story about the background of the convention, Madison's agenda, why the compromises of the convention take the form they do, why the structure of the decision-making on the Constitution, the ratification process, took the form it did.
Then I try to offer a general impressionist essay about the overall debate, the public debate about adoption. In Chapter 7, the chapter on Federalism, and the succeeding three chapters, I double back and look at four major issues of Constitutional theory that the framers and ratifiers were addressing, federalism, representation, the separation of powers, and the question of rights. In each of those chapters, I set out to apply the general method for talking about what did the Constitution originally mean that I sketched in the very first chapter of the book, and occasionally allude to in the succeeding chapters. Each chapter follows essentially the same format. I pose a problem; I look at the 17th and especially mid 18th century background to how people were thinking about those problems; I look at the immediate legacy of the Revolution; and I talk about the way in which those problems were discussed at the Constitutional Convention itself. Then, I try to come up with a kind of strong, thematic way o
f explaining why the public debate about that set of issues, took the form it did.
Each of those chapters is meant to exemplify the general model of doing originalist analysis that I set out to play around with, and I suppose, to propound, when I started to think about this project back in the ë80s, Each chapter works with a different set of sources and the different context with which we'd have to be familiar to come up with a fairly comprehensive and comprehensible understanding of where a particular clause or particular elements of the Constitution came from.
The very last chapter is one I did not anticipate writing. The Madison of the 1790's becomes kind of the founding father of originalism. He gives a famous speech to this effect during the debate over the Jay Treaty in the House in 1796. A couple of scholars whom I respect a lot have written important articles about this but I didn't think they told the political story in detail or came to grips with the kind of transition in Madison's thinking that his becoming an originalist entailed. So I wrote a chapter which I didn't anticipate writing but which seemed a logical and intriguing way to conclude. It was a kind of useful way to bring the book to a conclusion because it has always been one of my general positions as a historian to argue that there is really no such thing as pure Constitutional theory except in the academic sense. That turns out, I think, to be a pretty good chapter. Our Constitutional arguments are all shaped to some extent by political contingencies and the problem that historia
ns face is to reconstruct the interplay between political and theoretical concerns that explain how any particular debate took the course it did. The last chapter covers a subject, Madison's conversion to originalism, if you will, that illustrates how that process unfolds.
SM) Who would you credit as the most influential writers of American History and could you tell the contribution of each to your career?
JR) There are obviously two or three major influences on my historical writings. First, and most importantly, would be my own mentor, Bernard Bailyn. I just wrote a piece about Bailyn for Humanities Magazine because he's the Jefferson Lecturer this year and they asked me to do a descriptive piece about him. All Bailyn's students became his students in part because we took his seminar. His seminar was this very strange event in which you were never quite sure what you were going to talk about on any given day. He would give us this jumble of readings and it was by no means self-evident what the actual topic was. In most cases, the actual topic was the discussion of problems of exposition in historical writings or in the framing of good historical questions. Right from the beginning of graduate school studying with Bailyn, and completely independent of the subject of early American History, he made me very sensitive to the nature of historical writing and the nature of historical analysis.
Bailyn would always insist that you needed a good historical problem and that identifying some anomaly, some variance that had taken place in the past, which had a surprising, unexpected dimension to it. We had to figure out what our starting and concluding points were and if we couldn't do that coherently, we didn't have a good historical problem. He also brought to his teaching examples of his own writing. It conveyed such a powerful impression of what historical narrative and exposition were like. One had to be damn careful about putting anything on paper to meet his standards, which were quite rigorous and at the same time quite generous. He didn't tell us how he wanted us to write, but he set an example of what good historical argumentation and exposition should look like. If we took that example seriously, we worked really hard on our writing. So Bailyn was certainly the number one influence in my career.
The second, a good friend of Bailyn, was my undergraduate mentor, Wallace McCaffrey. Well, McCaffrey was my mentor at Haverford College. He was America's leading Tudor-Stewart historian and biographer of Elizabeth I. He did a very painstaking, carefully laid out, somewhat old-fashioned form of political narrative which is very close to the kind of writing I do. So I think McCaffrey's books are an example of a certain type of scholarly writing, and McCaffrey had a major influence on me.
The third professor who really influenced me, although somewhat more indirectly, was Oscar Handlin, who was also a major part of the program at Harvard. Handlin had a way of talking about change over time which was very subtle. Handlin's writing is very idiosyncratic in its own way and I've never tried to emulate him as a stylist, but he has a way of setting the problem of, how do you describe change? Change is a complicated process and the people who are living through it don't see everything clearly all at once. In fact, a lot of things they don't see at all or they see them only partially and the historian should not try to impose more coherence or much more coherence on a process of change than people of the time might have experienced. Or in other words, one of the problems of exposition, is how do you capture the sense of partiality and uncertainty in which all of us necessarily live. So I'd say those three members of the Harvard History Department, Bailyn, McCaffrey, and Handlin, were pro
bably the three foremost influences on me intellectually.
SM) Which modern authors do you enjoy reading?
JR) I'm a big Thomas Pynchon fan and I just finished over the summer Mason and Dixon which is a wonderful book and I think in many ways Pynchon's best book. I think it better than Gravity's Rainbow , which is fascinating but has lots of problems.
On the historian side, that's a good question. I think Bailyn would certainly necessarily be number one on my list. I don't know his works by heart, but I think I know them fairly intimately and I've spent a lot of time thinking about the intellectual strengths of each of them.
I'm known in the profession as somewhat of a "Namier-ite", after Sir Louis Namier. He was a very interesting character, a highly assimilated Polish Jew who became the leading historian of 18th century England. He wrote a bit about the American Revolutionary period as well. In the early part of my career Namier had a big influence on me intellectually, he had a kind of hard grasp of politics, didn't have many illusions about what political actors were like, and I think I've tried to be the same way, though in some ways I'm very sympathetic to their ideals. So, Namier certainly is a second historian on the list. Generally, I've learned a lot about writing from the kind of essays that English historians like Namier, J.H. Plumb, and in a very different sense, the late Sir Isaiah Berlin, (with whom I got to spend an hour talking at Oxford) do, and which I don't think American historians do very much of.
Those English historians are all blessed with this essayistic form which is so beguiling. They can take a figure or event and turn it around and play with it in a very artful way. It's not always easy to incorporate that into historical narratives.
I tend to think more in terms of books than of authors. Some books that I read I really just come away from and like but others I read for basic information value then try to incorporate it in my findings.
SM) Could you give a couple of titles that come to mind?
JR) Sure, well, in the field, Bailyn's two books on the Revolution, The Ideological Origins and Demography of Thomas Hutchinson, and Gordon Wood's Creation of the American Republic, are very important. I couldn't have done anything that I did without having those books as a foundation.
There are books that excite me intellectually partly because they provide something I am looking for. For example, I read a wonderful book by an Oxford historian, Paul Langford, called the Public Life of the Propertied Englishman. There were so many ideas going on in that book which dovetailed with some of my interests on the 18th century American side, that I found them very exciting.
I just read a wonderful book about the origins of Mormonism by John Brooke called The Refiner's Fire, which won the Bancroft prize a couple of years ago. It is a very ingenious tracing of both the intellectual and, in a sense, the social roots of Mormon belief.
I finished a book by an old friend of mine, Drew Faust, titled Mothers of Invention, about Southern women during the Civil War. I thought it started a little slowly but with each chapter it acquires more and more power. That won a Francis Parkman Prize over my book last year. Since Drew is an old friend, I was only a little jealous of her winning with that book (laughs).
SM) Today we're witness to the near daily struggle for dominance between the Executive and Legislative branches of the federal government. In Original Meanings, you explore the rise of the presidency's powers. How far from the original presidency have we traveled in the last two hundred years?
JR) Well, that's a good question. I think if there's one chapter that I'd want to perhaps rewrite a bit, it might be the chapter on the Executive. I think the reason is that there is an important lesson buried there, which I probably did not emphasize or clarify as much as I wished. It seems to me that of all the institutional innovations that the framers were concerned with the one that was most problematic, that would have been most difficult to predict how it would have evolved, really was the presidency. There was no real model of an independent national republican executive who was not a monarch. There was no real way to estimate what the political capabilities of the executive would be; there was no real way to determine whether or not he would be subservient to Congress or would emerge as something like a prime minister, or even a proto-monarch. They were really on uncharted terrain there. When you talk about the legislatures, there was a lot of experience with bi-cameralism and popula
r representation and so on. When you talk about judiciary, I think a lot of innovation is going on there too. There are pretty strong models available by the 18th century of what distinguished judging looks like. But the idea of a national executive operating in a republican political system, there was no real example to look to. One could look at states like Massachusetts and New York, which had popular elected governors (they had two very interesting, dominant, political figures in John Hancock and George Clinton) and perhaps get some sense that the president could really emerge as a powerful independent political voice in his right.
There were so many uncertainties about the elected presidency. Whether the electoral college system would work, if so how? Whether one could even have national candidates, that is, candidates who would be able to be known to the whole electorate choosing the electoral college. There are so many uncertainties about that that I think any attempt to say there was a kind of fully articulated conception of an independent national republican executive, would be very hard to provide a coherent picture for. In that sense, any attempt to say how far have we come from the original design is kind of silly because necessarily the presidency was the one institution which would require the greatest amount of innovation. Then it really was a guessing game as to how this thing would operate, what form would it take? How effective it would be? How much power would the president have? What kind of political influence he would exercise? There was no reliable basis to answer any of those questions. Because it's t
he most innovative institution, and the most problematic, it is also the least susceptible to us today asking, why is it so? It had to be dynamic, there was no alternative, given the amount of uncertainty there was no alternate to innovation.
SM) Gordon Wood of Brown University said that Original Meanings would likely be "A bible for all those lawyers, jurists and other who seek to understand the original meaning of the Constitution". Did you set out to create a reference work when you wrote Original Meanings ? And how do you see such a student of the Constitution using Original Meanings as a bible?
JR) Well, Gordon is a good friend and colleague, and the remarks are very generous ones, but in fact, I don't think it will quite have that effect for a couple of reasons. One relating to the nature of contemporary controversy and the other relating to the nature of the book. The first problem is that contemporary controversies are driven by particular configurations of facts and pressures, and ambitions, and lawyers have their own way of operating that historians can't really control or even influence very much. We can do the best we can to be the critics of how originalism is used and we can try to provide better accounts that over time should probably filter into contemporary discussions in the legal and political spheres. But, we shouldn't have illusions about our capacity to influence public actors including judges who are responding to many other constraints.
There are reasons it can't be a bible. I had thought at one time that I should try to address in this book a number of contemporary controversies of a fairly specific nature by way of illustrating how my so-called method would apply and what kind of findings they would produce. But the more I thought about the book and its structure, the more I moved away from that idea. Probably because it would completely distort the essentially historical nature of the book. It would be a very awkward interjection to say, in writing a book in the early ë90s, here are some set of pressing issues that I am now going to try to explain and try to resolve in a sense, by applying my method of analysis. I thought doing that would fundamentally alter the essentially historical tenor of the book.
Another reason is that a historian can't keep up with it. Itës one of the curious things about American law and politics. We're continuously generating controversies about the Constitution, sometimes about very obscure clauses whose meaning one might think would have been either moribund or long settled, yet suddenly they become subjects of actual concern. Historians can't really keep up with that. I felt it would have the effect of dating the book to try to do much of that thing. If I do it, it will be as a separate book that will be presented as such and will have a distinct quality of its own.
SM) Would you feel that kind of a work is needed?
JR) I think it would be useful. All of us, including policy makers and jurists, all of us, reason much of the time on the basis of our impressions of history. All of us carry around with us some lessons about the past, either our own past or some impressions about a larger past which form a major component of our mental framework. We all reason on the basis of experience and on the basis of the lessons we think we've learned either individually or collectively. Usually our reasoning about the past is not done with any kind of rigor, and it's very impressionistic or may be very utilitarian. It may be based on anecdote rather than systematic examination of the evidence. If that's true, then one of the roles historians might play is to demonstrate what are the flaws in the way in which we ordinarily reason about the past or, alternatively, what are more systematic ways of reasoning about the past.
Historians have a critical function to play in terms of trying to provide our society in general, or particular parts of our society, with more sophisticated understandings of the nature of their own historical processes of cognition. In the case of politicians and lawyers it seems to me that part of historians' legitimate public task should be to criticize faulty historical reasoning. If originalist arguments for particular Constitutional outcomes are really nothing more than rhetorical means to advance decisions really driven by other concerns, then I think historians ought to call their bluff. I'd rather reason honestly in our public life about the things that are important to us than to use history just for instrumental rhetorical purposes.
SM) In writing Original Meanings you immersed yourself in primary sources. In your research, when you find conflicting sources about what is going on ó what's happened at some event ó how do you reach an understanding, a compromise, a way to understand the events that were described by these different sources?
JR) Well, in one sense, having that difference of opinion was absolutely essential to the very nature of the book I was writing. In the first chapter, on the perils of originalism, I paraphrase John Marshall's famous dictum in McCulloch v. Maryland that we can never forget it is the Constitution we are expounding. As historians, we can never forget it's a debate we are analyzing or we are expounding as opposed to the supposition that some crystallized, primordial set of meaning was locked into the Constitution at the very moment of adoption. Which is, I think, the fiction upon which the theory of originalism rests.
My central assumption is that what was taking place was a debate that revolved around two different sets of predictions. A debate that expressed hopes and fears, that had rational moments but also some paranoid and overly optimistic ones, as well. The challenge is basically to describe a debate. Your question describes the problem I was facing because in a book of this nature, I could respond to that question very easily by saying it is the very fact there is a diversity of views has to be remembered in order to understand why the debate took the form it did.
Now there is an important caveat here. There's one historian of Anti-Federalism, Saul Cornell at Ohio State, who sat on a panel on my book at a conference last summer, and criticized it by saying that if one looked carefully at how I set up this debate, I typically rely upon moderate Anti-Federalists, usually the "Federal Farmer". Cornell said that I didn't try to capture the whole spectrum of Anti-Federalist opinion. That's a very good and a very fair criticism. I had a couple of reasons for making the choices I did. One is that it seemed to me, empirically, that when Federalists respond to Anti-Federalists' criticisms they do so in two ways. One is that they kind of pooh-pooh the criticisms. They disparage everything that's fantastic and paranoid about the extremist Anti-Federalists' criticisms. In other words, they try to say that it's the "nutty quality" of what a lot of Anti-Federalists are saying that should tell right-minded citizens why they should not heed the Anti-Federalists' indictment.
If one looks at the structure of the debate, it seems to me the Federalists open the public debate in a fairly high level of generality simply by saying, "let's ratify the Constitution because it's going to bring peace and prosperity", or something to that nature. They only move on more specific and more pointed defenses of the Constitution, as the Anti-Federalists start to muster stronger arguments. Well, I think these stronger arguments, the ones that have more theoretical resonance, the ones in which we are more interested, tend to come out of the moderate Anti-Federalists. They're not the paranoids, not the ones that are drifting off into fantasy, but the ones who look at the Constitution, look at its scheme of representation or ask whether the states should be able to compete with the national government to have adequate resources to conduct their own business. It seems to me those are the criticisms that force the Federalists to move beyond clichÈs and generalities to really defend the Constit
ution on the merits and in its particularities.
I guess there is another consideration, from our perspective of 200 years later, why do we care about Anti-Federalist paranoia? If we're trying to reconstruct the original meaning of the Constitution and we have legitimate purposes of our own, in terms of our own debates, doesn't it make sense to try to look at the strongest, the most deeply reasoned, expressions of concern or defense of the Constitution, and not the ones that were so much campaign rhetoric? Arguments that either everything is going to be "hunky-dory" or we're going to go to hell-in-a-hand basket as soon as this thing is adopted. In a sense, there is something arbitrary about what I'm doing because I'm saying, here is a set of sources I prefer for these reasons and I'm not taking all comments from the past as being equally valid.
SM) How did the interaction between the Federalists and the Anti-Federalists political forces influence the content of the Bill of Rights?
JR) Well, the crucial actor who determined the contents of the Bill of Rights was James Madison. We know a fair amount as to how Madison proceeded. He worked from a pamphlet which was published in the fall of 1788. It listed all the amendments that had been officially proposed by various ratification conventions. I forget the number of them, but it was fairly substantial ó in the hundreds.
Madison proposed a list of amendments to the House of Representatives in early June 1789 and it's kind of buried for awhile and eventually the subject is taken back up in August and the Bill of Rights is completed. Madison eliminated from his list of amendments anything that would have created structural changes in the nature of the union or the national government.
The Anti-Federalists had been very adamant that that's what they really wanted. They didn't just want a Bill of Rights as a kind of statement of principles or protection of basic civil liberties, they wanted to change the Constitution in fairly fundamental ways. Madison and other Federalists weren't going to have any of that. They had won the first federal elections, they'd won a political test-of-strength and they knew that they didn't have to respond to that with a compromise.
Madison eliminated many of the statements of general principles that bills of rights had in the 18th century. (I talk about this in my newest book, Declaring Rights.) The bills of rights were often rhetorical statements of principles. They'd contain many kinds of statements that you or I would be surprised to see attached to an American Constitution today. Part of the reason for this is that bills of rights weren't just addressed to government, they were really meant to be addressed to the citizens, to serve what I call in my new book an educational or educative function. They're meant to tell citizens what their rights are and also to instill certain norms of behavior the citizens ought to respect. But Madison was skeptical that standards like that would have much effect, that's one reason he called bills of rights "parchment barriers" that really might be nice to look at, but aren't going to have much practical effect. So basically what Madison does is to winnow his proposed amendments down to
the protection of those civil liberties that he regarded as essential.
In that sense, the Anti-Federalists part of the dialogue is in many ways pretty muted. Madison really takes over the process, carries it forward in the light of his own reasoning about what kinds of statements should appear in the bills of rights and what kinds shouldn't. That's the reason the Anti-Federalists are very unenthusiastic ó almost indifferent ó to the actual amendments the Congress proposes.
SM) Jefferson is not present at the Federal Convention. Do you believe his influence on the Constitution can be detected despite his absence?
JR) Well, yes, in some ways. One of the crucial elements of the Constitution and the whole process of its adoption was the idea that for the Constitution to be fully constitutional, to become supreme law, it had to be proposed by a body specially appointed to that purpose alone and then adopted through some mechanism of ratification. The Constitution could not simply be promulgated by a legislature. Jefferson is one of the major sources of that concept.
Jefferson was stuck in Congress in 1776 when the Virginia Constitution was being drafted. He made a number of drafts of his own for it which he sent off to correspondents in Virginia. He very much wanted to be back in Virginia to participate in the process, but he couldn't, he was stuck in Philadelphia. He was very critical of the outcome of Virginia's Constitution. In part, he felt that way on procedural grounds. The Virginia State Constitution was framed by the Provincial Convention, which was also doing other business due to the war. Jefferson believed it was not only writing a constitution but was also acting in a legislative capacity, and that meant the Convention was nothing more nor less than a surrogate legislature.
Under existing English legal doctrine, no legislature could pass an act that would bind subsequent legislatures. All legislatures had equal juridical standing. One legislative act was pretty much the same as another and there was an English legal maxim, the Latin of which translates into, when there is a conflict between two statutes and one has not repealed the other, legal interpreters should prefer the more recent statute. If we plug that concept into American constitutionalism ó that constitutions could be adopted by bodies which were legislative in nature ó then it followed that subsequent legislatures could, if they chose to, violate some rule or norm set down by that constitution and would be perfectly within their right to do so. That's why Jefferson thought they needed to develop some other procedure to express popular sovereignty more directly.
Jefferson is one of the major architects of that criticism of the early Virginian Constitution which later also applied to the Articles of Confederation because they had been approved, ratified by the state legislatures. That was a major component of American Constitutional theory in its mature form. And that, I think, is the contribution Jefferson makes most. That's not the one we would ordinarily think of but it is one which I think had the greatest impact on the changing doctrine of 1787.
SM) In politics there are two kinds of power, the informal-influential and the direct-informal. We know that for example the direct formal power in the Convention was Madison, who was working in the background. Who do you think were the informally powerful people? Who was in the center of the Indian Queen tavern talking about things and shaping delegate opinion?
JR) That's a real tough question because it requires speculating in the absence of evidence about what was going on elsewhere. I'm not sure I know how to answer it. When we work from the sources, it's fairly clear that from the records of the day that a dozen or fifteen of the delegates are participating fairly actively, a few other pop up occasionally to say something and probably the majority are sitting for the most part silent all of the time and voting as part of their delegation.
Among the active members of the Convention, the one who probably best fits the bill for that kind of influence might be Roger Sherman of Connecticut. Sherman does speak, but in debate his colleague Oliver Ellsworth from Connecticut seems to have spoken often and more fully. I don't think that Sherman was a very effective public speaker. But it's often said that Connecticut was a bit of a swing delegation especially on intersectional issues. There is good evidence of a kind of Connecticut/South Carolina alliance that matters on some issues. Sherman, although he is not a great speaker, was kind of a dogged parliamentarian, a real political veteran, and probably good at political in-fighting. So he might have had that effect. Of course, there is the usual line which I suppose is true in a general way, Washington doesn't say anything until the last day. Franklin reads the occasional speech or has it read for him, which rarely, if ever seems to have much impact on the actual. He has a good sense of hu
mor, and he is very adroit in that way. So maybe it is worth speculating to what effect these two senior statesmen, really the two best known Americans of their age, have on the tenor of the proceedings. One thinks on the whole their impact couldn't help but be positive.
SM) I just thought of Gunning Bedford, Jr. and I'm wondering if someone like him had a tempering effect. He was Madison's roommate and friend, a delegate from Delaware, he speaks occasionally, has one very quotable moment championing the little states. He must have had conversations with Madison outside the hall. What about the delegates like Bedford at the Federal Convention?
JR) That was when he was speaking in opposition to Madison. Yeah, the other person one might think of along these lines is actually John Dickinson. There's one moment when the New Jersey plan is being debated, when Dickinson is really trying to play the mediating role for which he is so famous, but he's kind of upstaged by Hamilton. From that point, Dickinson is ill off and on during the Convention and that illness may have hamstrung his effectiveness. Yeah, we can speculate about it, but it's hard to measure, by its very nature it's hard to measure that kind of influence. It's easier to say that the debate took the course it did because we had strong statements on the one hand from Madison and Wilson, and Hamilton and on the other hand from Ellsworth and Patterson. Then one can see how the positions sort themselves out when the time comes to vote. It's another matter entirely to guess about things that didn't leave much palpable evidence. It's a good question but its really hard to answer.
SM) How do you view the place in the study of American History of the so-called "historical revisionist movement"?
JR) Well, history is always about revisionism. So in one sense that's an easy question to answer. Revisionism is just a name for saying that when there is a kind of orthodoxy in interpreting one problem at some point someone is going to come along or some group will come along and say "that standard story really doesn't make much sense and here's a better way to think about it". So revisionism is a generic name for changes in historical scholarship.
Sometime in the ë60s and ë70s it had the connotation of questioning orthodoxy. Then orthodoxies tended to celebrate American History and to emphasize consensus and continuity over radical disruptions or radical challenges to existing authority structures. There is no question that this historical scholarship advanced because revisionists raised tough questions and sometimes succeeded in answering them. I don't think we can ever improve our knowledge by taking myths about our past for granted.
SM) Old-fashioned questions like...
JR) Well, basically my whole scholar career has been about where did the National government and national politics come from? That's about the oldest question you can ask about American history. It's a question George Bancroft was asking in all those decades of the 19th century. Bancroft lived a very long time, I think he lived into the 1880s. It's not so different from Bancroft's questions. It's not so different from the questions that the first generation of academically trained historians and political scientists were asking at the very end of the 19th century. I think politically, in some ways I'm kind of a centrist. No one would characterize me as a new left historian. I tend to think that the framers and their generation were a pretty impressive group of people. So nobody is saying I am a revisionist, myself, but it seems my scholarship is fairly innovative because I took an old set of issues and found a new set of questions to ask about them. No one would ever claim that I'm a re
visionist but it seems to me that my scholarship has revised some fairly standard impressions of how the Constitution took the form it did.
SM) What are some questions about the rise of polity in America that have yet to be answered, perhaps by the students of the future?
JR) That's a good question. Well, the historiography of the Revolution into the late 18th century has, in many cases, but not every case, suffered from a chronological fissuring. One set of problems addresses how the Americans went from resistance to revolution in about 1776. There's another whole body of studies which pick-up in the 1790s and the organization of political parties in the beginnings of democratization of American politics. Not many studies have succeeded in tracing political change through Revolutionary Era proper.
Not many studies have succeeded in answering the question, what did the experience of Revolutionary politics per se mean to any number of the participants ranging from my political leaders, my kind of elitist figures, down into the ordinary population? I think it would be nice to see more sustained attempts try to look across the period, from the late colonial into the early nationalist period in a kind of continuum.
SM) Who do you believe is recording modern American History? Who is keeping a record of it?
JR) Well, everybody is recording it. We have a volume of material that future historians will deal with that has to astronomical. That's kind of a curious question for an 18th century historian. There are fairly ample sources for the 18th century but they're finite. I can't imagine how one could possibly begin to sort out all the multiple sources of data, much of it garbage, that our contemporary society is producing.
SM) In the 18th century fires did that culling, didn't they?
JR) Well, that's right. It's one of the ironies of being a historian. On the one hand, it's a great source of frustration to know that archives don't answer questions we really want to know. That they disappear, some were lost to the ravages of time and some were destroyed deliberately and some were destroyed carelessly. I'm about 95% convinced that, Charles Thomson, the secretary of the federal congress, probably kept notes of the debate throughout his tenure as secretary and that they are probably among the documents he reputedly destroyed in the 1790s. Had I notes of the debate of the kind that did survive from Thompson for one particular period of time in 1780 or of the kind that James Madison took in 1783, that would have helped me a lot in my first book. But the sources just are not there. That's very frustrating but should always be a reminder of humility.
There's a limit to how much confidence we can have in our judgments of historical events because we depend on the accidental survival of sources. Yet, it makes life easier to know that, at least in some areas, one can do a reasonably good job of exhausting the sources we need to look at. We just have to take the sources as they are given to us. We have to go on; we have to work with what we have and not agonize too much about what's missing from the record because we can't recreate it.
SM) What effect do you believe this paperless age that we're living in will have on the understanding of our time by future students of American History?
JR) Well, it's clear that it's not as paperless as it seems because we still seem to be producing reams and reams of paper even with e-mail. Historians have been litigating with the National Archives about the preservation of electronic records and have been working pretty hard to guarantee that all our e-mail and other similar forms of communication are backed up ó that those things are not deleted and trashed before they can be somehow amalgamated into the National Archives.
There's another very interesting question that archivists are confronting. Given the changes in technology how do we actually preserve the hardware to read non-paper forms of communication? That's a very interesting question. Think about all the technological changes we've seen in the last twenty years. I was just thinking about this when I was working with a document I drafted in the early 80s. How much information is stored on the old larger sized floppies? Actually, I may still have around a drive for those bigger floppies. You know, the ones we no longer use, the ones that were 5 1/4" instead of 3 1/2"? This is a very interesting technological problem. It's one good reason why books will hopefully survive. A book is in many ways a perfect form of information retention, at least it has much more technological stability than any of the much more exciting media we're dealing with today.
SM) Could you talk about the Documentary History of Ratification Project and explain what reservations you have about it?
JR) It's a project that was launched by the late Merrill Jensen, a very distinguished early American historian from Wisconsin (though I've always been a big critic of his work). It was launched by Jensen and several of his students back in the 1970s. The idea was to publish in a letterpress form and with a microfilm supplement, the entire record of the debate over the Constitution.
So, it's twenty or more years later and they're still cranking the volumes out. They're making progress, but they still have a significant way to go. They've gotten to Massachusetts, but they haven't yet gotten to New York, which is a very important state. They haven't gotten to North Carolina, which has very full debates from its convention. I'll probably be retired before that part of the project's done. I'll be long dead ó we'll all be long dead ó before the project's work on Jefferson and Adams gets anywhere near to completion. So it's a little frustrating how long it's taken.
What I found interesting about the project is that one has to ask the question: What is the one format we could use to replicate a wide-ranging debate? We always have to form some arbitrary set of decisions, some format, yet none of them are going to perfectly recapture and replicate the way in which the debate actually unfolded. That's quite a problem.
In the case of The Documentary History of Ratification Project what I think bothers me a little bit is that there is a lot of repetition in it. We find the same document in multiple places. It's really a waste of time and space to reprint the Federalist. It's somewhat technical complaints like that, I have.
They're a hard-working group, I respect them, and there's no doubt that what they're doing is invaluable, but it's a very long-term project.
SM) What is it about the teaching of American History in our public schools that you see as crucial to be included into that dialogue with our students?
JR) Well, Education/Social Studies is always about norms of citizenship. As I try to explain it to my undergraduates, Citizenship may mean values, institutions, things we need to know to function as a measure of political responsibility. Citizenship also means questions of identity. That's really what much of the debate about multiculturism, obviously is, is citizenship.
Americans have a deep responsibility to respect politics and to understand why they have to respect processes of democratic decision-making. About which, it's often easy to be quite cynical (with good reason). It's easy for us to be cynical about the ambitions of our politicians; it's easy for us to be cynical about the role of special interests; it's easy for us to be discouraged about the play of ideology. Sometimes it seems there's a lot of things to be discouraged about. Maybe, it's the single issue nature to our politics.
It seems to me we all have a normative commitment to understanding the importance of validating principles of democratic self-government. To understand why even when we are cynical about how our political system is operating (often with good reason) that we still have a stake in maintaining a deeper level of respect for the fundamental assumptions and values on which that system rests. I think that's a part of the deep seriousness thing as well, that we have a moral stake in democracy. Some of that may mean understanding why people in the 18th century or 19th century who did not live up to our standards, in whom we are disappointed, deserve a fair amount of, at least, understanding and probably respect because in many ways we haven't lived up to their standards. I'm not sure but that if we really balance their sins against ours, who the greater defaulters would be. They had assumptions about citizenship and about what it's responsibilities and duties were, which we probably haven't performed very well
. We're disappointed in them because they were slaveholders and some of them were racists and those are pretty serious charges.
SM) Now they are serious charges, but at that time they weren't, right?
JR) Right, that's one of my points of history, that they really had to come to understand that slavery really was a problem. To take that for granted would be fundamentally ahistorical. To take it for granted that they should have known that slavery is a radical evil and great sin. When its in a world in which they grew up, then its a very problematic idea.
SM) That's when Jefferson comes to mind...
JR) Yeah, right, Jefferson is the touchstone of our anxieties. I think there is a lot that is very pathetic, and to be sure, quite troubling about Jefferson. I happen to think that on issues of things like religious freedom, separation of Church and State, fundamental notions of democracy, the illegitimacy of any government which doesn't depend on some substantive democratic approval. I think Jefferson saw those things quite, quite clearly. He's a very complicated guy, very wide-ranging. He had some real strengths and some grave weaknesses.
SM) What advice can you offer middle and high school students studying about our nation's history?
JR) Well, consistent with what I said earlier, I think there is something deeply serious and fascinating about the origins of American constitutionalism. It really was a great innovation and an innovation that has had major consequences both for us and, arguably, for other societies as well. To understand, to try to recapture a sense of what was fresh, creative, experimental, dynamic about these debates and the decisions to which they lead seems to me that's very important. It's important as a component of citizenship within the national polity. But, I think it's important in grappling just as a historical question. A lot of the Americans of that generation ó whatever their faults, and whatever their shortcomings by our standards ó they were breaking ground in a lot of interesting, dynamic, creative, novel ways. To just think they were a bunch of guys back there who did a lot of reading and tried to apply their ideas in a kind of rather antiquarian way, just does not capture everything tha
t is dynamic and creative about what was going on.
When we study history, we always want to keep in mind that people did not know what the consequences of their actions would be, they could not predict anymore than we can what would follow from decision A or decision B. Because those events are such a symbol of national identity and are so easily abused for patriotic purposes, it's very easy to lose a sense of the experimental, creative, uncertain quality in what they were doing. The teaching of history and, I think, the understanding of history really should necessarily involve some kind of uncertainty principle. We should always remember that people of the time did not know of the consequences their actions. They could not predict the future. They were as uncertain about the origins and meanings of events as we often are. They had to take it one day at a time. So when we find these guys not only taking it one day at a time but doing a number of interesting things over a prolonged succession of days, months and years that turn out to have substant
ial consequences, I think we have to cut them some slack and try to understand what was happening with them.
SM) They were the political personalities of their day, weren't they?
JR) Yeah, that's what my dad always used to say, that politicians really are a certain kind of temperament. Politicians for different periods, in different environments would probably recognize each other. That doesn't mean political culture is the same in every society in every point, it varies very significantly. Politics is about deliberation, it's about getting people to reason together about common purposes or to disagree about divergent purposes. We need to think about politics in that sense, that thought and deliberation reflects personalities, reflects degrees of rationality, and it reflects other kinds of variables. I wouldn't be surprised that some kinds, some aspects of politics must recuró never in exactly the same configurationó but some elements would seem familiar.
SM) Familiar yet different?
JR) One reason we study history is because we have to assume the past is different from the present. If it were really the same, there wouldn't be much point in studying it because we'd already know it. Also, the way we recognize things from the past must depend upon some part of our mental make-up.
SM) There's a tendency I think we have to want easy answers. What do you think of this "fast food" understanding of our history?
JR) Gordon Wood has a really interesting reflection on this when he says Americans have complicated attitudes towards the past and the reason we are inclined to condemn people in the past or to judge them is that we're reluctant to be reminded about our own powerlessness, it's kind of a displacement mechanism. I enjoy quoting him on that often.
SM) You mentioned another book, what's the next book going to be about?
JR) Well, actually I have several next books. I'm doing one on the Constitution for a series that Blackwell is beginning. It's kind of a teaching oriented book and aimed at graduate students as well, which does not tell the narrative story of the event but looks at all kinds of analytical questions that are raised about it and tries to engage them in an interesting way.
I did just publish a little book for Bedford which is a collection of documents called Declaring Rights, a Brief History of the Documents. It's about the question, what does it mean to have a bill of rights and what were the arguments for and against incorporating the Bill of Rights in the Constitution about? In that book, I tried to explain why I think both Federalists and Anti-Federalists had very strong arguments in their respective clamors for and against the Bill of Rights. I try to do justice, as I try to do in Original Meanings, to both sides of the debate.
That reminds me of a couple of other books I'd like to do. I think I'll do a short version of the Federalist. Also, I think I will do one on the origins of judicial review on the cases of Marbury v. Madison and McCulloch v. Maryland, illustrating the difference between judicial review as an aspect of separation of powers within the national government and judicial review as an aspect of Federalism as a relationship between national government and the states. I think that is the more important and more interesting aspect of judicial review.
Beyond that, well, I'd like to do a sequel to Original Meanings which would take problems of contemporary controversy and frame them historically. I've been involved for a long time in some research having to do with the structure of relations with American Indians and the political and Constitutional structure of Indian relations in the late 18th century. I have been doing historical research for some lawyers about that.
SM) Is that for the Oneida case in New York state?
It started with the Oneidas and now it is about something involving the Seneca as well. I always wanted to turn that into a monograph and also a general reflection on problems of developing a satisfactory structure of Indian relations because of Federalism.
Finally, the thing I really want to make sure to have done by age 75, would be to complete what I see as a trilogy about the creation of the national republic. I've always wanted to do a book on the 1790's. I have one book on the Continental Congress, a second book on the Constitution ó the late 1780's ó and I'd really love to do a book that would get from 1789 to 1801. The successful transition of power and all that. That would be more of a political book like my first book and I'd have to go back into the archives in a major way and that would involve some fairly substantial research. I didn't have to do that with Original Meanings because everything for it was printed.
SM) Thank you for your time and conversation, Dr. Rakove.
JR) It was my pleasure.
Steve Munzel is an educator, historian, consultant, free lance writer, and small town politician. He lives with his wife and daughters in California's sun-kissed Santa Clara Valley. This is his first contribution to The Early America Review.
© 1997 by Steve Munzel, all rights reserved.
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