Donald Drakeman wants to rehabilitate the Framers. In his latest book, The Hollow Core of Constitutional Theory, he returns constitutional interpretation to its “historical core,” the original intent of those who drafted the Constitution to be law. While academics have “mostly moved on,” preferring what Drakeman calls “outcomes-based decisions” instead of the intent of the Framers, the public still venerates the original Constitution. The Hollow Core is a powerful brief written to academics on behalf of the public who want to know the Constitution’s meaning.
In the book, the Framers appear as practical problem-solvers. The Constitution is the result of deliberate negotiations and compromises, each resulting in a final settlement intended to serve a purpose. People make laws as means to achieve identifiable goals and to solve practical problems. The solutions they choose are often intelligible as practical solutions. The Framers were no different from other lawmakers in this respect.
Drakeman follows Oxford jurisprudence scholar Richard Ekins in understanding the making of legislation or a written constitution as an “intentional lawmaking act.” He admonishes interpreters to seek the reasons why the language was chosen in light of the state of the law at the time and the practical problems that the drafters were trying to solve. By considering those background facts, we can discern “what the language was being used for.” The meaning of the Constitution’s text is fixed by each final, end-means choice—the selection of a term or clause as against possible alternatives to be the agreed-upon way to solve a particular problem of governance—rather than by the “initial preferences of the individual Framers” or their abstract political philosophies. Thus, he argues, “we should not focus on what they have written on the topic in general or in the context of their state constitutions.”
Drakeman thus views the Constitution as a practical, legal document. And his method for understanding its meaning is legal interpretation, the same method that lawyers have been using to understand the meaning of statutes, contracts, wills, deeds, and other legal texts for centuries. In this method, “the central goal of interpretation is discerning the will of the lawmaker,” which can be inferred from the text, the old law that the provision altered, the mischief to be cured, and the remedy chosen.
Old Answers to New Questions
The Hollow Core skims across some deep theoretical and technical waters as Drakeman makes way through various objections to a constitutional law of original intent. Whether linguistic meaning is formed by a subjective intention or a set of conventions, and how a group can express an intention and change the meaning of legal propositions without unanimous agreement, are questions to which analytical philosophers have devoted considerable attention in recent years, but which lawyers do not often consider. And the classical maxims and canons of legal interpretation that the Framers took for granted involve technical legal distinctions that American lawyers once routinely studied but which are now largely forgotten. Drakeman summarizes these matters with clarity and precision without getting bogged down.
This elegant book has a lot of work to do. The concept of a constitution as supreme law may be too rich for contemporary jurisprudence to digest. Drakeman writes to a scholarly elite who understand constitutions as expressions of political will and law as an exercise of power. For example, Drakeman quotes Christopher Eisgruber’s characterization of constitutional rule as subjugation to “the dead hand of the past,” which subordinates “present-day politics to the will of past super-majorities.” Eisgruber finds it difficult “to think of any good reason for empowering dead people in the first place.”
Eisgruber’s assumption that American constitutions are mere expressions of will is contrary to fact. The human beings who wrote and ratified the early constitutions of the several states and the Constitution of the United States understood themselves to be declaring and giving specific form to concepts, institutions, and doctrines of existing law—common law and the ius gentium to be precise. They thought themselves and their rulers to be obligated in reason to maintain fidelity to that law.
It is not obvious that scholars who reject enduring, pre-positive obligations a priori can be persuaded to view the Constitution’s propositions as laws. If not, perhaps Drakeman can persuade them that original intent nevertheless matters. Drakeman largely concedes the concept of law as an artifact of will. Though he insists that the act of constitutional lawmaking is (at least in central cases) purposeful and reasoned, he identifies the law of the Constitution as the set of its posited settlements. He disclaims any view on the question of whether the Constitution implies natural law principles. And he largely accepts the now-dominant notion that common law is judge-made. This approach limits the scope of his project, though it may broaden its appeal.
Drakeman offers a practical case for non-pragmatic constitutional interpretation. The “results-oriented constitutional decisions” of the twentieth and twenty-first centuries have significant costs. “Non-interpretative” adjudication has left the Supreme Court in the role of “super-legislature” and contributes to the impression that the Court is no longer an institution of lawful judgment but is instead “just making it up.” Courts are not competent institutions for making policies, and they undermine their role as discerners of truth when they conceal consequentialist judgments behind the pretense of legal reasoning.
Attention to the Framers’ intention solves these problems. Legal interpretive methods apply “old answers to new questions” in a way that preserves the integrity of the Constitution and the Court while accounting for technological and circumstantial changes that are within the Framers’ intentions. The reasons for which the Framers chose the Constitution’s provisions enable interpreters “to identify the original meaning of the text” and to “interpret an eighteenth-century document in light of unforeseeable twenty-first-century circumstances.”
Original Intent and Public Meaning
Drakeman also writes to originalists whose commitment to the public meaning of constitutional text sometimes leads them to disregard the first-person intentions of constitutional framers. He agrees that it is necessary to understand the range of public meanings, but he denies that it is sufficient. The job of interpreting written law is not to identify any meaning that might reasonably be attributed to the text but to pick out the particular proposition that the drafters intended to use to communicate their “end-means decision.”
Though Drakeman (like Michael Rappaport and John McGinnis) largely limits his discussion to legal interpretive methods, his argument has significant substantive implications. To interpret the Constitution as law requires us to know legal concepts and institutions, for the Framers thought in legal terms. Classical legal methods of interpretation can reveal constitutional meaning in part because the Constitution consists of classical legal content.
What Lawrence Solum calls immersion in the “linguistic and conceptual world” of the Framers yields an understanding of American constitutions as expressions of common law and the ius gentium: the discrete bodies of legal concepts with a shared tradition of legal reasoning. Both sources of law ought to be intelligible to anyone who has read the great jurists whom the Framers admired: Cicero, Justinian, Hooker, Coke, Selden, Hale, and especially Blackstone. Though Drakeman does not credit the sources of the Constitution’s legal terms and concepts as American constitutional law, he cites Coke and Blackstone frequently and he quotes or refers to Cicero’s Republic, Justinian’s Digest, Magna Carta, and the English Bill of Rights.
Drakeman’s admirable project can be expanded and strengthened by sustained attention to those and other sources of legal terms that the Constitution declares. Drakeman worries, “In a geographically diverse country of immigrants, key constitutional terms could have multiple, sometimes inconsistent meanings.” For this reason, he sees distance between original intent and original public meaning. But the Framers constructed a bridge from their intent to public meaning. They built it using classical legal concepts, which for most of American history were familiar to all lawyers, educated as they were by reading Coke’s Institutes of the Lawes of England and Blackstone’s Commentaries on the Laws of England. Many non-lawyer Americans also knew the terms because they either had the Commentaries on their bookshelf or lived within walking distance of someone who did.
Our written charters and receiving statutes kept nearly all of the common law in place, declaring its essential features in writing and adding new provisions that adapted classical legal concepts to American needs. So, when we examine a provision of the Constitution of the United States or an early state constitution, we often discover that it either declares a pre-existing legal concept or institution, or takes a common-law concept as its baseline for some limited change in order to remedy a defect in the law.
This basic, conceptual distinction between declaratory and remedial enactments was as familiar to eighteenth- and nineteenth-century lawyers as the alphabet, and equally as indispensable to understanding written law. A declaratory constitutional enactment writes a familiar concept (e.g. “due process,” “cases, in law and equity”) or institution (e.g. “property,” “letters of marque and reprisal”) directly into the written charter. A remedial constitutional enactment takes a common-law concept or institution (e.g. “ex post facto law”) and extends or adjusts it in some discrete way (e.g. by prohibiting “impairing the obligation of [existing] contracts”) to remedy some perceived shortcoming of existing constitutional settlements.
There were, of course, existing constitutional settlements, and not only the Articles of Confederation. The Framers did not create the American constitutional order; they changed it in some respects and left many of its aspects in place. As James Stoner often points out, the Declaration of Independence expressly refers to “our constitution,” which was the common-law constitution of British North America. The states also had constitutions, whose authority the states exercised when they ratified the Constitution of the United States, and out of whose authoritative settlements certain national powers were carved. And the territories were governed by the Northwest Ordinance. So, to understand the Framers we must also understand constitutional law as it stood in 1787 (and 1868, etc.). That requires us to understand the vested and natural rights to which those prior constitutions refer and the institutions that settle their meaning in contested cases.
When read as terms of art referring to established legal concepts, constitutional provisions often prove determinate. Most of those that remain indeterminate were meant to be settled in particular cases by familiar institutions, such as property conveyance and jury trials, and are thus beyond the competence of judges to specify. For example, what counts as an “unreasonable” search or seizure is, to a common-law mind, a question for a jury.
The Establishment Clause
Drakeman’s book does not much consider the Constitution’s declaratory terms, but he does discuss many of its remedial provisions, including the tax clauses of Article I and the Establishment Clause of the First Amendment.
The original meaning of the Establishment Clause, which prohibits Congress from making any law “respecting the establishment of religion,” is famously contested. Some states had established Christian denominations, as England does, while others had established Christian education, though they did not privilege one creed or denomination. Thus, early public deliberations about the meaning of “establishment” contain evidence of two, reasonable views. Some thought any official support for religion is an establishment, while others limited establishment to an official endorsement of a creed or denomination.
Turning his end-means analysis to the Establishment Clause, Drakeman finds discernible meaning. Those who posited the First Amendment in 1789 drafted the Establishment Clause “solely to answer a fairly straightforward, narrow question about whether Congress had the power to create a national church along the lines of the Church of England.” Drakeman concludes that it reinforced Congress’s incompetence to establish a national denomination. There is no evidence that the Framers intended to take sides on the “broader question of how religion and government should relate to each other.”
Whether or not practical, lawyerly Framers are more appealing than the idealistic Framers of American myth, Drakeman makes a persuasive case that they crafted a practical, legal instrument. Reading the Constitution as law might not resolve all of our constitutional controversies, nor make everyone want to understand it. But it may make the Constitution accessible.