Patriotism and economic liberty are not mutually exclusive. Commercial republicanism can unite them.
Mike Rappaport and I have a new article, “Unifying Original Intent and Original Public Meaning,” which argues that the main two forms of originalism may well be the same, assuming that the Framers intended interpreters to follow the original interpretive methods of the time, which were essentially the conventional legal interpretive rules of the age. In a post yesterday, Mike offered some of the theoretical foundation for our piece. In this essay, I will summarize our evidence that the Framers’ did intend to follow conventional rules and that this intent did not include following the substantive intent of the Framers or of the ratifiers. In other words, they intended interpreters to follow the conventional rules to clarify provisions of the Constitution, even if that clarified meaning turned out to be inconsistent with the meaning they substantively intended. We could not survey all of the legal history of the Early Republic to make our conclusions but limited ourselves to debates over the constitutionality of the Bank of the United States. Thus, our research is suggestive but not definitive.
The debate over the Bank of the United States occurred immediately after the Constitution was enacted, and thus likely captured the conventional methods of interpretation deemed applicable at the time of the Constitution’s enactment. It engaged a wide spectrum of opinion, pitting nationalists, who saw the Bank as essential to sustaining a flourishing republic, against those more interested in preserving state power, which they saw as closer to the people and less liable to corruption than national institutions like the Bank. It occurred under the most intense public scrutiny of any constitutional issue in the Early Republic. It sustained attention from some of the most important political and legal thinkers of the time, including James Madison, Thomas Jefferson, Alexander Hamilton, and Edmund Randolph.
The conclusion we draw is that the major participants in the debate thought that conventional rules should be followed, that there seemed to be substantial consensus on the content of these rules, and that the rules did include focusing on the substantive intent of the Framers. Those involved in the debate turned to rules that one would apply to documents analogous to a federal constitution, like a statute or a state constitution. Legal analysis at the time suggested that such rules might sometimes be modified in light of the differences between the Constitution and the analogous documents.
Hamilton’s opinion was most explicit on the obligation to employ established rules. He stated that the intention of the Constitution “is to be sought for in the instrument itself, according to the usual and established rules of construction.” But others in the debate also called for following conventional rules. Elbridge Gerry, a bank proponent like Hamilton, but unlike him an antifederalist, argued that the rules of Blackstone should be followed. Edmund Randolph, an opponent of the Bank, in his discussion clearly was devising the proper way to apply conventional statutory rules to Constitution. We believe that these views should be given great weight because they emanated from very able, practicing lawyers.
But even those who did not make a living practicing law used conventional rules. Thomas Jefferson’s opinion against the bank turned largely on the conventional antisurplusage rule, as he argued that such a large power as the bank would have been enumerated. James Madison set out a series of interpretive rules that would lead to making a constitutional judgment against the bank, which we argue were largely conventional or derived from conventional rules. There was one way in which his proposed rules were not like those others embraced. He appeared to think the Constitution should be interpreted like a treaty as well as like a statute. But this view did not appear to be widely accepted by others at the time.
Importantly, there appeared to be a consensus against use the substantive intent of the Philadelphia convention. While two great lawyers—Hamilton and Randolph—disagreed on whether the Bank of the United States was constitutional, they nevertheless agreed that substantive intent was not relevant. Madison mentioned his memory of what happened at the convention in his speech on the bank, but he did not include reference to the substantive intent of the Convention in his set of five relevant legal interpretive rules or in his legal analysis. Jefferson did mention that the Framers has implicitly rejected a bank based on what they intended at the Convention, but the anti-surplusage rule was more important to his legal analysis.
The debate over the Bank also does not support the notion that it was a conventional rule to consider the substantive intent of participants at state conventions as constitutive of the meaning of the Constitution. Instead, the debate suggests that material from the ratifying conventions had at most a more limited role. First, material from state conventions was used as a contemporary interpretation of the text of the Constitution proposed by the Federal Convention. Thus, the participant in the debate engaged not in a canvassing of intent but rather used state conventions as a form of evidence about the interpretation of a text laid down by others. Second, it was one rule among many of evidence about the text and thus only one factor in interpretation. Finally, only formal actions of an entire convention, like the passage of proposed amendments, not individual comments of the ratifiers, accrued substantial support as the basis for contemporary interpretation.
For instance, during the debate over the Bank, Madison elaborated most on how material from the convention might be used. As noted above, Madison’s speech stated that in interpreting the Constitution, “[c]ontemporary and concurrent expositions are a reasonable evidence of the meaning of the parties.” He then discussed three kinds of “contemporary expositions.” First, he said that “[t]he explanations in the State Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated.” Madison thus thought this proposition to be universally embraced. He then quoted “sundry passages” from speakers who supported this position at the conventions. Second, he noted that the explanatory declarations and amendments of the Conventions were to the same effect. Third, he claimed that the amendments proposed and ratified by the states, i.e., the provisions we now know as the Bill of Rights, “proceeded on a rule of construction, excluding the latitude now contended for.”
Thus, Madison himself provided powerful confirmation that he did not believe that the Constitution was constituted by the substantive intent of the ratifying conventions. Not only did he label these materials as contemporary expositions of a text already written, he sees exposition at the ratifying conventions as similar in kind to inferences from what we now know as the Bill of Rights. These references to the Bill of Rights could hardly represent expressions of substantive intent, rather than evidence of what a text meant, because the Constitution had already been enacted at the time the amendments were proposed in Congress.
Moreover, the kind of exposition that made for a contemporary issue was limited. Hamilton joined Madison in arguing that a whole convention could provide for a contemporary exposition of the meaning of the Constitution, when they engaged in an authoritative act like calling for the passage of an amendment. Madison seemed to think that a consensus of statements from ratifiers might furnish a contemporary exposition, but his fellow Bank opponent Randolph disagreed. No one believed that individual statements of ratifiers were entitled to weight as contemporary expositions.
The evidence from the Bank debates provide further confirmation. First, as discussed above, there was no tradition of relying on the statements of legislators from legislative history in the sovereign parliament as constitutive of the meaning of a statute or much evidence of relying on it as a contemporary exposition of meaning. It would thus have been odd to resort to legislative history of conventions for interpreting the meaning of the text, even assuming that the state conventions were the sovereign enactors of the Constitution. Second, there were thirteen separate state conventions. Even beyond the aggregation problem of finding the intent of a multi-member body, discussed above, finding the intent of the state conventions would raise the even more difficult problem of aggregating the state conventions.
Third, it counts as some evidence that no enactor said that it was their intent that mattered to interpretation. When they debated the meaning of the text, they debated it as if the meaning was already fixed and something to be clarified through resort to conventional rules of interpretation. They were thus acting self-consciously as contemporary interpreters of text—which is the way Madison himself understood them.
Beyond the significance of these particular findings, we believe that our research into the Bank debate shows that it is possible to recover the legal interpretive rules applied at the time the Constitution and Bill of Rights was enacted. Applying them today would help render the meaning of the Constitution more determinate and accurate.