Interpreting The Constitution: The Debate Over Original Intent

by Jack N. Rakove (Editor)

Jack N. Rakove has assembled in this volume a variety of views that survey the debate over the extent to which the intentions of the Constitution's framers should be used in contemporary adjudication. Included are writings by former Attorney General Edwin Meese, III, former Supreme Court Justice William J. Brennan, Jr., Robert H. Bork, Lino Graglia, H. Jefferson Powell, Charles A. Lofgren, Paul Brest, Henry Paul Monaghan, and J. Morgan Kousser.

480 pages, Hardcover

First published November 6, 1990

About the author

Jack Rakove is the William Robertson Coe Professor of History and American Studies and professor of political science and (by courtesy) law at Stanford, where he has taught since 1980. His principal areas of research include the origins of the American Revolution and Constitution, the political practice and theory of James Madison, and the role of historical knowledge in constitutional litigation. He is the author of six books, including Original Meanings: Politics and Ideas in the Making of the Constitution (1996), which won the Pulitzer Prize in History, and Revolutionaries: A New History of the Invention of America (2010), which was a finalist for the George Washington Prize, and the editor of seven others, including The Unfinished Election of 2000 (2001). He is a member of the American Academy of Arts and Sciences, the American Philosophical Society, and a past president of the Society for the History of the Early American Republic.

Reviews

[Jdb · Rating 4 out of 5]

Rating based on intriguing content, not on writing quality, some of which unfortunately suffered from dense, legalese of long sentences with multiple commas and big words like hermeneutics (Look it Up !)

This 1985 book is a compendium of 10 essays about the judicial philosophy known as ‘Originalism’. Each one is written by a different legal ‘expert’ (includes a U.S. atty general, SCOTUS justice, & assorted law professors).

Chapter 1 is a famous defense of Originalism by Ed Meese. Chapter 2 is a direct rebuke of Originalism by liberal Scotus justice Brennan. Chapters 3-10 are analyses of different problems with Originalism.

Originalism became a controversy in the 1980’s in response to the 50 year growth of the administrative state begun by FDR’s New Deal and continuing through LBJ’s Great Society. It was part of the so called Reagan revolution.

For simplicity, Originalism is described as the judicial philosophy based on identifying the text in the Constitution and if ambiguous, discovering the ‘intent’ of the Constitutional Convention framers/ratifiers that apply to the issues in conflict before a court. ‘Read laws as they apply w/restraint’. Defer to the legislature or executive branch when possible. Adjudicate, not legislate.

I’ll call the polar opposite philosophy of interpretation, Judicial Activism. This approach says that the proper method of adjudication is to apply the expressed or derived ‘general’ principles ‘ of the Constitution to modern social issues or values, which the Framers could not have foreseen. Adjudicate to protect individual rights paramount. Make law if necessary rather than defer to legislature.

Simply, Originalism is “the process determines the result “ and Judicial Activism is “the result determines the process”. (Thank you Mr.Scalia)

The title of this book says ‘Debate’, but it is quite one sided and I was disappointed that Judicial Activism shortcomings weren’t at least summarized in order to balance the discussion. The reader is left with the impression Judicial Activism is easily the best method of interpretation .

Major objections to Originalism are: (1) complete records of Constitution Convention are sparse or incomplete, including Madison’s notes which couldn’t have copied debates in sufficient detail due to time constraints and absence of a fully developed short hand protocol plus Madison edited his notes in retirement which detract from their credibility (2) ratifiers ‘intent’ impossible to determine because most of the state ratifying debate documentation did not survive. (3) Originalism cannot justify the administrative state, which is an accepted norm today in our government systems, therefore it lacks legitimacy as an interpretive philosophy. (4) It is hubris to think interpreters of today can assume that the Framers /Ratifiers intent and understanding could anticipate society issues 200 years into the future.

Of course, as Attorney General Meese stated in opposition to judicial activism, “ There is danger in seeing the Constitution as an empty vessel into which each generation may pour its passion and prejudice “

Like history, the law is “Argument without end” but in this debate (still ongoing in 2025) , I think Scotus associate justice, Amy Barrett, defines the Originalist philosophy best: “It is the process of looking closely at the text (words) of the Constitution and the Framers’/Ratifiers’ intent, IF THEY ARE DISCERNIBLE”. If not discernible, then focus on precedent or defer to the legislature.

This seems preferable to the alternative of judges inventing rights to meet social objectives.