Book Review

Jack Rakove's Pulitzer Prize winning history, Original Meanings, is a perceptive and engagingly written narrative of the Constitution's creation. In addition, by providing a model of how to investigate the Constitution's meaning for the people who framed and ratified it, Original Meanings is a major contribution to the current debate over whether the founders' understanding should govern us today.	1
Rakove is no friend of "originalism," the increasingly influential jurisprudence whose fundamental tenet is that judges must apply the Constitution according to the understanding of the generation who framed and ratified it. In ingenious and insightful ways, Rakove uses history to debunk the use of history as the touchstone of contemporary constitutional law. Rakove's analysis is so compelling that we well may ask: Can originalism survive Original Meanings? I conclude that a chastened form of originalism can survive Rakove's trenchant critique.	2
Original Meanings canvasses the founding era twice. The first pass is a superb narrative of the Philadelphia convention, the multi-state ratification campaign, and Congress's approach to interpreting the new organic law in the 1790s. The second is a sophisticated, synthetic consideration of the framers' and ratifiers' thinking on four topics of central concern to them—federalism, representation, the powers of the president, and the protection of individual rights.	3
All these events and topics have been canvassed many times before. It is challenging to say anything fresh about them. Yet Rakove's book advances our understanding of American constitution making by emphasizing the ambiguity of what the founders wrought. In Rakove's analysis, the historical record evidences not a meaning but "the range of meanings that [Americans] first attached to the proposed Constitution" (7). What Original Meanings shows better than any prior history is that initial differences over the Constitution's meaning were not confined to disputes between political or economic groupings, such as Federalists and Anti-federalists or farmers and merchants. Rakove shows that the differences also were individual: that leading participants in the constitution-making process shifted their positions on what the Constitution meant as the Constitution passed through the stages of drafting, ratification, and implementation. What the framers and ratifiers said or thought about the Constitution changed as the reasons for speaking changed, as the speaker's experience changed, and as the grounds for argumentative success and needs of debate changed. Even for individual constitution makers, then, "[t]he notion that the Constitution had some fixed and well-known meaning at the moment of its adoption dissolves into a mirage" (6). Rakove has aptly entitled his study "Original Meanings" rather than "original meaning."	4
Rakove's synthetic study of the founders' work on federalism, representation, the presidency, and individual rights helps concretize his overall thesis. His consideration of whether the founding generation intended a strong or weak president is particularly telling. In Rakove's view, there is no clear answer. Instead there is a range of answers, some of which were only emergent as the process of drafting, ratification, and implementation proceeded. Similarly impressive is Rakove's chapter on representation, which focuses on the founding generation's belief that jury service and legislative representation were the preeminent guarantees of civil liberty because they checked arbitrary executive power. That popular institutions could threaten liberty was another emergent lesson for the founders. With an interdependence that Rakove delights in uncovering, it was a lesson that played some role in shifting views on presidential power.	5
Rakove's retelling of the Constitution's framing, ratification, and interpretation in congressional debate between 1789 and 1796 provides the material for his critique of originalism. With new material and new insight, and with sophistication, comprehensiveness, and authority previously unmatched, Original Meanings presents two standard criticisms of originalism. The first is that originalism is impossible because history is too nuanced and ambiguous to give determinate answers to today's constitutional controversies. The second is that originalism is self-contradictory because the founding generation did not intend that its intent govern the future interpretation of the Constitution.	6
Rakove presents the "impossibility" critique in the first chapter of Original Meanings and amply illustrates it throughout the remainder of the book. Rakove's version of the "impossibility" thesis, however, undercuts originalism only to a limited extent.	7
Rakove is not a deconstructionist who argues that no meaning can ever be winnowed from the historical record. In other work, Rakove has explored questions, such as term limits and the propriety of judicial review, on which he thinks the evidence establishes a determinate answer about the founders' understanding. Implicitly, Rakove's view is that the instances in which history provides determinate answers to contemporary issues are few and far between. On the one hand, Rakove teaches us to be deeply suspicious of originalists who continually find clear answers in history to contemporary questions. On the other hand, he agrees that, on occasion, it can be done.	8
More generally, Rakove steers a middle course in the historiographical debates about our ability to discover determinacy in history. Although he insists that "few interpretations of the more ambiguous and disputable clauses of the Constitution can be established conclusively," he does not mean to "treat all interpretations as equally plausible or representative of the prevailing ideas of the time" (10). Thus Rakove acknowledges that even where there are no clear answers, the record may establish a range of answers that confines the meaning of the Constitution.	9
Establishing a historically accurate range of meanings does real work for an originalist. It provides a limited choice of allowable meanings. So many of our contemporary practices are so distant from those contemplated by the founders that much is ruled out, even admitting that there is ambiguity within the allowable parameters. How an originalist might proceed in making choices within the range of original understandings is a controverted topic. The central point, however, is that originalism cabins constitutional evolution by judicial fiat by limiting judges to the range of meaning plausibly dominant at the time the Constitution was ordained and established.	10
Concomitantly, ambiguity in history is not an impediment to originalism, it is an impediment to judicial activism. Pointing to the grounds that legitimate judicial review in a democracy, many originalists assert that judges need a clear warrant to place themselves above the decisions of legislatures. Lacking a clear warrant in the constitution, judges simply may not act. Rather than being an impediment to originalism, ambiguity is a compass for indicating the result that originalist judges should reach.	11
Rakove's treatment of the "self-contradictory" thesis does not slay originalism either. In Original Meanings's final chapter, Rakove refines the claim, first broached by H. Jefferson Powell, that the founders did not expect their intentions to govern the interpretation of the Constitution. Despite important differences, Rakove essentially agrees with Powell's conclusion that, at the time the Constitution was adopted, the founders expected the Constitution to be interpreted according to the common law method of statutory construction. According to common law technique, statutory construction was confined to inferences drawn from a statute's text and structure. "There was no notion or tradition of construing a statute by examining its legislative history," Rakove maintains (341). It was not until after ratification that Rakove sees anyone claiming to interpret the Constitution according to the intent of the framers or understanding of the ratifiers. Even then, as shown by Rakove's analysis of congressional debate on the president's removal power, the bank bill, and the Jay Treaty, the few congressmen who used originalist arguments did so only partially and hesitantly.	12
If this is Rakove's challenge to originalism, all that has been proven is that the style of interpretation originalism ensconces is the traditional common law method of statutory interpretation. This is close to the way many nineteenth-century judges interpreted the Constitution, John Marshall among them. But common law statutory interpretation, as understood by the founders, is not dynamic; it does not contemplate that a statute has an evolving meaning. Common law statutory construction must not be confused with the common law method that creates judge-made law. The latter may well be dynamic but not the former, which seeks to enforce the static intent of an authoritative enactment binding on the courts as well as the parties.	13
I assert this understanding of the founders' conception of common law statutory construction as applied to the Constitution with some diffidence. There is insufficient research on the founding generation's evolving understanding of judicial review to assay its parameters definitively. At present, however, it does not seem likely that at the founding any politically influential group thought the Constitution should evolve through judicial construction. The founding era judiciary was just emerging from its position as a subsidiary part of the executive branch of government; many Anti-federalists feared federal judges as minions of a remote government; contemporary theories justifying judicial review emphasized the law's static, rulelike qualities. To the extent founding era judges grounded constitutionalism in extratextual principles, they were eternal principles of natural law and free governments.	14
I make these remarks not to defend originalism as the correct constitutional jurisprudence but to suggest that its rejection must be on normative, not historical, grounds. Even a historian as adept as Rakove, whose study of the founding will become the standard account of the Constitution's drafting and ratification, cannot use history to fully debunk the use of history as the touchstone of constitutional law.	15
Stephen A. Siegel DePaul University Law School

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