Pulitzer Prize-winning historian Jack Rakove discussed the benefits of historical originalism, a school of thought that interprets the United States Constitution’s meaning as fixed in time, in the annual Philip A. Hart Lecture at the Georgetown University Law Center on Wednesday night.
Rakove is a professor of history and American Studies at Stanford University and an author of six books. He won the 1997 Pulitzer Prize for History for his book “Original Meanings: Politics and Ideas in the Making of the Constitution,” which questioned the validity of originalism as an exhaustive means of interpreting the Constitution.
U.S. Senator and Georgetown alumnus Philip A. Hart established the annual lecture to encourage dialogue on topics that interested Hart throughout his career. More than 50 people attended this year’s lecture.
Rakove began his speech by identifying himself as an old originalist, which he characterized as a way of thinking that involves grappling with the nuances and complexities of the historical record. He said only a few other people are concerned with this line of thinking about the Constitution.
“I think most of our colleagues would be happy to write it off as so much law office history. That is to say, if lawyers are going to do it, they’re going to do it with their own expedient, ulterior purposes in mind, and historians do not take that kind of activity seriously,” Rakove said.
Rakove offered two options as a means of interpreting the Constitution according to originalism. The first was to use the analysis historians offer, and the second was to think linguistically and engage in close analysis of individual clauses, key words and phrases.
Rakove structured his lecture by supporting historical originalism and opposing linguistic originalism through several arguments. He noted four objections to linguistic originalism, also known as new originalism.
In his first objection, Rakove said that one cannot be sure of the type of person interpreting the Constitution.
“In fact, there doesn’t seem to be that much agreement among new originalists as to who is the ideal type of reader that we’re trying to conjure up. Is he an informed citizen? Is he a juror?” Rakove said. “Who is this person who is reading the Constitution? We don’t know.”
Rakove’s second objection argued that even when the ideal reader is defined, he is not a real person who existed in the past but is instead manufactured in the present. The historian followed this with a further objection contending that the modern creation of the reader is a constraint on judicial discretion.
Rakove said the use of a set of linguistic rules to determine the Constitution’s meaning would surprise most historians.
“There’s no simple linguistic way to reconstruct the meanings without reconstructing the debates in which those meanings were being discussed,” Rakove said.
Rakove’s defense of historical originalism rested on seven points, the first of which noted that old originalism does not claim to know how the Constitution should be interpreted and that historians cannot be legal interpreters.
Rakove further contended that historical originalists must engage critically with the historical reasoning in which lawyers and jurists engage for their personal purposes. Rakove also said the purpose of history is to distinguish the present from the past and that historians must resist oversimplification.
Rakove’s fourth point argued that every statement made about the Constitution does not have equal value.
“The primary positive purpose of historical originalism is to describe a set of divides involving a diverse set of actors,” Rakove said.
Rakove’s last three arguments in defense revolved around the need for a realization that the multiple parties within texts were often not involved in direct conversation with each other, that American constitutional tradition has its own history and that the meaning of a text cannot be locked into it at the time of its legal adoption.
Rakove said the American Constitution is a political story, and that historians must conceive of constitutionalism as more broadly defined.
“If you’re thinking historically, the way that I do, one way to try to tell the story is to understand that American constitutionalism is, in many significant respects, essentially a political story,” Rakove said.
Jillian Casey (LAW ’17) said the topics Rakove discussed are important ones to address.
“It’s very important after Scalia’s death and the talk about attempting to replace Scalia, and what type of judge we want to replace Scalia with,” Casey said. “I actually was very surprised that there was such a distinction between the different types of originalism, so it was a very interesting talk.”
Brendan Kearney (LAW ’18) noted the importance of deciding how the Constitution should be interpreted.
“It seemed like it’s all about the meaning of the Constitution, which is our founding document, and whether the meaning of the Constitution evolves over time or whether it has some sort of fixed meaning,” Kearney said. “Figuring out how it should change and how it should stay the same seems pretty crucial for the legal system.”
