Original Meanings

I began reading Jack N. Rakove’s “Original Meanings: Politics and Ideas in the Making of the Constitution” (1997) to try to come to grips with the term “originalism” as applied in recent years to rulings by the United States Supreme Court. Having at first been a little perplexed about how to take the terminology (Slavery then, slavery now?), I have now quickly come to realize, in more specific terms, just how utterly complex this subject is, beyond any one hot button issue.

Such that I cannot summarize all the key pieces in one meagerly essay, but I can share an essence today by quoting from two powerful chapters, each of whose titles alone are telling. One is entitled “The Perils of Originalism,” and the other “The Politics of Constitution-Making.”

From the first: “Our reconstruction of the original understanding(s) of the Constitution, then, cannot be divorced from the political context of the ratification struggle. This does not mean that we should dismiss all statements on either side of the question as so much propaganda, but it does require an evaluation of the expedient needs that particular arguments were made to serve.”

From the second: “Two divisions, two sets of compromises: These were what drove the politics of constitution-making at Philadelphia. There the ephemeral struggle between small and large states and the more durable and evil-fated rift between free and slave states defined the competing and conflicting interests that the framers had to resolve. Their accommodation was a necessary though not sufficient condition for the success of the Convention.

“Which compromise was the greater act of statesmanship, which simply the fruit of expediency?” It is “not very difficult to condemn the bargains over slavery,” ”as ‘a covenant with death.’ Embarrassed as many framers were to see human bondage acknowledged in the Constitution, euphemisms and indirection could never disguise its accommodation of slavery as a fundamental element in the structure of American politics and law.” An “original meaning.”

There is a lot of detail in Rakove’s history, almost to require an immediate reread once through it, but there is no ambiguity in those two summary remarks from two early chapters. They are profound statements of the politics of some kind of compromise, necessary to concluding the Convention of that 1787 summer.

The story does not get less complex as it goes forward to deal with the question of what constitutes a proper ratification amongst states not yet at one with the idea of an overriding federalism. State legislatures had their own minds and various constitutional structures, which yet would need to be served politically if ratification was to be state--legislative-convention by legislative-convention. One state, Rhode Island, refused even to send a delegation to the Convention. The preceding Articles of Confederation even required unanimity among the states for amendments, not consensus, let alone allowing for a wholly new document to form a stronger federal bond.

So, what of “original meanings”? Are they the gold standard? Hardly. They reflect necessities, compromise, how to define rights, and what could be best achieved in that slice of time, not necessarily our own slice of time. Women must vote too. And slavery, of any kind, hashed out by Civil War and Reconstruction, never again