Early American Voting Demographics (responding to Professor Rakove responding to himself)
rakove at stanford.edu
Fri Aug 24 20:31:28 PDT 2007
Some responses to Matthew Holden's points:
Point 1. I wrote a whole book (I thought) on this subject when I was still
middle-aged, and I began it by trying to be rigorous about distinguishing
the original meaning of a text (which I see as the object of originalist
interpretation) from the original intentions of its authors (the framers)
and the original understanding of its adopters (the ratifiers and the
public for whom they spoke). Though that distinction did not seem
especially sophisticated or problematic to me, I thought it would be
helpful about maintaining it, since the originalist scholarship I knew when
I was getting under way seemed more casual on this point. (Lofgren's
criticism of Powell on this point is, well, on point.)
Point 2. It might be true for the Constitution, but instead of stating it
as a general rule, wouldn't we want to test it on a case by case (clause
by clause) basis. The best case for deliberate ambiguity that I know of
comes not from the Constitution but from the section of Art. 9, Clause 4 of
the Confederation relating to which Indians the Union would have
jurisdiction over. Here it is easy to demonstrate that the Continental
Congress rejected two amendments to provide more specific language in favor
of a clause that remained maddeningly ambiguous.
Point 3. In original meanings, I argued that the principal significance of
Anti-Federalist objections, as they took shape in the early fall of 1787,
was to move the Federalists away from the general appeals to apple pie and
motherhood (or peace, prosperity, and the prestige of Washington and
Franklin) and to begin answering Anti-Federalists on the merits. So the
Anti-Federalists were certainly key participants in the debates (though
Saul Cornell faults me for preferring moderate Anti-Feds, like Melancton
Smith [a.k.a. Federal Farmer] to the zanies of whom he is more enamored).
That still leaves open the question, though, of how much interpretive
authority to bestow on the losers. This issue is ably discussed, however,
in a recent book by David Siemers, Ratifying the Republic.
Point 4. I take some credit for insisting The Federalist be called by its
proper name. But I would also insist that it is a big category error to
deny or disparage its authority on the premise that it's propaganda. The
uncritical use of that word does us no analytical good. We should reserve
it only for the governmental manipulation of symbols and information that
lies closest to its original meaning. Why? Because all political speech is
meant to be persuasive, and expanding the term propaganda to describe
something as closely reasoned as The Federalist makes it impossible to
understand what political speech really is.
(whose baseball idol, in the early 1950s, was the late Eddie Miksis,
nonpareil utility player--go figure)
At 02:47 PM 8/24/2007, matthewhpolsci at aol.com wrote:
>Point 1. It is easy to find original words. They are written. What is
>the methodologically valid way of getting original "understanding"? Is
>original understanding the same thing as original "meaning?"
>Point 2. Words are sometimes chosen to allow a majority to come
>together, when nobody knows exactly what they mean. Why is this not true
>for the 1787 Constitution?
>Point 3. To Professor Rakove's question, the opinions of objectors become
>part of "how we will make this thing work, because if we do not accept
>some of what those guys have to have they will upset the whole deal."
>Point 4. This is just to restate a position I stated a year or two. The
>Federalist, which a year or two ago on this list someone taught me that
>the properly educated historians call it, not The Federalist Papers, is --
>as a statement of original meaning or intention-- is a judicially imposed
>fiction. It was political propaganda by an odd coalition, one member of
>which was not in Philadelphia at all, and one member of which had little
>to do with anything and spent most of his time back home in New York.
>Later on the Supreme Court (per CJ Marshall) adopted The Federalist and we
>know that anything have legal authority at that level becomes the legal
>version of "truth."
>Matthew Holden, Jr.
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