(Roughly) Daily

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As political discourse in the U.S. has devolved into the nastiest kind of spitting match– dramatic thesis, passionate antithesis, no synthesis– antagonists on all sides of every issue invoke the Constitution, its Framers, and their intent… which, it seems, can be understood to justify just about any position.

So The Browser‘s recent “Five Books” interview with Jack Rakove on the U.S. Constitution couldn’t be more timely– nor more helpful.  As he explains his selection of the five books he’d most recommend to anyone wanting to understand the context for, the drafting of, the process of ratification of, and the ultimate role of “the oldest written constitution still in use,” the Pulitzer-Prize-winning Stanford historian sheds light in every direction, e.g., on the role of the Judiciary…

Most historians are very skeptical about the way that the Supreme Court is [interpreting the Constitution]. To reason accurately about the past is much trickier than one might think. The current version of originalism is what’s called “public meaning originalism.” It says we don’t really care about the history of how these provisions got adopted, we’re not going to try to reconstruct the debates to figure out what the framers wanted and what the ratifiers thought. We just want to get at the holistic meaning of the language. To historians this is a terribly flawed enterprise, but that’s the current regime… Language is dynamic. As the work of many historians, including my own work, attests, the 18th century was a period of political experimentation. The framers were rethinking the nature of representative government, they were rethinking the nature of executive power, they were coming up with new rules for judges. All this required a terrific amount of creative political thinking. The idea that language was fixed when all these ideas were being stretched and pressed in different directions, the idea that the meaning of a text is frozen at the moment of its adoption, it just strikes most historians as inane.

You’ve said that historians should call the bluff of people who twist the history of the Constitution for instrumental purposes. Please call someone’s bluff.
I submitted a brief in the District of Columbia vs Heller case, from three years ago. That was the case in which the Court struck down a 32-year-old handgun ban as incompatible with the Second Amendment. I think there are intellectual embarrassments of the first order in Justice Scalia’s opinion. He wholly ignores the history of how the Second Amendment got adopted. He makes things up that did not happen the way he hypothesizes. But I’m a historian and he’s a Justice. I’m a private citizen and he’s a public official. I think I have better footnotes, but he has a vote on the Supreme Court.

Read the entire fascinating interview (and order any/all of the books Rakove recommends) here.

As we muse that things could always be– indeed, once were– even worse, we might recall that it was at dawn on this date in 1804 that Alexander Hamilton and Aaron Burr met on a rise in Weehawken (NJ) to resolve their differences with a duel.  The rivals fired essentially simultaneously;  Hamilton’s shot was wide, but Burr’s hit its mark.  Hamilton died the following day.  While there was a good bit of personal animus between the enemies, their feud was fueled by deep political divisions. It’s proximate cause: Republican Burr’s feeling maligned by Federalist Hamilton.  But the bloody encounter was just one symptom of the deep animosity loosed by the first emergence of the nation’s political party system.

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