>> our tour staff recently traveled to montgomery, alabama to learn the rich history. learn more at c-span.org. you are watching american history tv, all weekend and every weekend on c-span3. >> up next on american history tv, an historian on interpreting the u.s. constitution. he is the author of several nalks, including "origi meanings." this lecture is hosted by the georgetown university law center is about one hour and 15 minutes. >> is a privilege for me every year to be able to introduce the lecturer. but it is particular honored to be able to introduce jack, the co-professor -- he briefed me on how to

pronounce his name. i think i screwed it up. [laughter] but even if i cannot pronounce his name correctly, somebody who has worked -- i have admired him since graduate school in normal sleep. when i was in graduate school, it is a pathbreaking work. and what set it apart from previous work was that it very thoughtfully engaged with the members of congress as political actors. confronting challenging issues in real-time. preface that the

book recognized that american leaders encounter a series of perplexing and difficult problems rooted in the dislocation produced.

projects a deep understanding of ideology. and a deep understanding of doctrine. details reality. his son, dan is here today. he talks about the number of steps from the convention hall to the state assembly. that in the sense of

which one of the members of the convention basically ran from the convention to the assembly. he counted those steps. of concrete historical reality and then in understanding of the policy. back to jack's childhood. don't make no waves, don't back no losers. it was a great story, we don't want nobody. nobody sent. and, as jack would say, he is a andve cook county democrat

that is a level of insight. is a time in which lawyers trying toen understand the constitution's original meeting and i do not think there is any historian today so eliminated right the -- meaning andg its relevance. it is my pleasure to welcome rakove to the stage. [applause] rakove: thank you for the generous introduction. i know this building white well. a few seminars and constitutional history a few summers before.

thought ofe, i georgetown law school as an outpost within the larger community. to come back to it now for another class and to see the remarkable development in this community the physical development and everything else is so much more impressive than it was a decade and a half ago. it is a pleasure. said, in terms of the dean, when i signed a contract a couple years ago one of the very first people i recruited was the dean because they wanted someone to write an essay on the -- the federalist as saying on the they had a book, the free exercise of religion so

i spent a lot of time studying and i did notng understand if i did not have a lawyer's guide to know how to read them. some years ago, i was grateful to have been asked to write a brief. an interesting challenge and project. of theoud to be part should say the distinguished alumni outside of chicago, david cole. and since i am interested in the ism, it is a privilege to be here with larry. not here today, but spiritually. and another cook county site, thinking about randy and larry's work, regionalism, is one of the big issues i intend to discuss.

-- he was known as the conscience of the senate. that is a position that no longer exists. if it does exist, i don't know when the next appointment will be made. it is safe to say this because randy is not here. advocate of gun control. he would not have regarded it as fundamental right to blow other americans away with gay abandon. in some ways, i think i am proudest of having written and

historians brief in the ec development. representing a point of view which may come back into fashion. hashatever fortune province it for the american republic. so these are delightful reasons to be here. let me go on. we are talking about the superior virtue of historical originalist some. i want to talk about what it means to be an historian. a working historian what does it mean to be an historical originalist. most of this will go into explaining what that details. i will begin with a personal confession.

i am an old originalist. i am one day older than the marshall plan, so everyone here can really calculate my birthdate in case it is a little foggy. . turn 69 in a couple weeks i am an old originalist in that sense. not a spring chicken anymore. i am thinking about when to retire. i am an old originalist. i am aging, and i am an originalist. it could also have another set of references. i have been interested in the subject of originalist them ever since i was a graduate in harvard in 1970. i started thinking about the issues we call originalist history when i was working on my dissertation. i was not interested in the

jura's financial aspect, but the impeachment of richard nixon. i come from a family of longtime nixon haters. in thate a long history subject. i am interested in war policy resolution. what role the congress lays on 's of authority. i was also a member of the committee against the war. a reserve committee against the war which filed a very interesting suit against defense secretary james/injure. james schlessinger. which called to resign under the provisions of the constitution which prevents members of congress from holding office under the executive branch.

start thinking of the issues -- i am an old originalist. i've been thinking of this for four point decades, going back to the nixon years. this is the point that matters, i am an old originalist meaning i am not a new originalist. there are different schools of thought. [indiscernible] new originalist them is a linguistic term. i am an old originalist and that i believe in why any of them getting to the original meeting of the constitution requires pursuing a serious form of historical analysis. there is no credible way to be an originalist if you are not prepared to grapple with the nuances and difficulties, but

also the amplitude and complexity of the historical record. that is what i thought all along and as i got to work on it in the early 1980's actively, it always seemed to me part of the order of things, that the only way one could be an originalist , per se,ke the history very originally. keeping in mind the difficulties working historian's encounter when they work with the past. to offer annt account of historical originalist. i do not think that is a phrase which appears in the literature. trying to point it or give it a currency but maybe it say whatway to try to original isn't meant to people who started to think about. they would have assumed you could not do it intelligently if

you are not invested in working through the evidence available that would and able people to think what did the framers of intend or understand they were doing. so that is historical originalist them there is a very small group of people actively concerned with it. i keep thinking of the phrase from edward the fifth speech rendered by shakespeare. have the few, we band of brothers. i think i could name six counting myself. the dean would be one, his former colleague, marty flaherty would be another. of -- forll at fort ham/.-- ford at -- aolleague

colleague of mine and one other. among historians, we are only ones who take the issues of originalist some. if lawyers are going to do it, they are going to do it with expedience and ulterior purposes in mind into his story not take that activity seriously. [indiscernible] i want to present a positive -- i want to start by -- several starts -- eventually it comes to a conclusion. i want to start by a opposing a simple intuitive question to the audience. were ignorant, as i am sure many of you are, suppose you knew nothing about the debates going out with an the

legal community about the nature of originalist them. what form it takes. decide --re asked to and you were asked 2-d side. is it a more compelling alternative? option one, old originalist aem, you would want to create --rative which [indiscernible] -- choice number one, it intuition. if you did not know much about the debate. stop me at any time or correct me. what you really want to do is

ofage in a close analysis individual clauses and keywords and phrases, resting on the best relyingon of terms by on an array of literary resources. and applying the approach of modern linguists to develop semantic meaning of the word originalist. we have to try to think historically. thankcond is we want to linguistically. this is a vast oversimplification for reasons of economy. you cane lots of ways refine and correct the notion but i think as a whole it is not the basicto represent choice between what i think of historical originalist them and what is now called new originalist them.

i think there is a somewhat broader perspective. workingargue is a political historian that i think the american constitution is primarily a political story. that is to say it seems to me the landmark events have had profoundly lyrical components. driven by political considerations. you can think about this in the founding time, the election of andrew jackson, the election a very am lincoln and reconstruction. -- abraham lincoln and reconstruction. the new deal prices.

the voting rights and civil rights acts of the mid-1960's and so on. leaving a little space for the impeachment of richard nixon, one of the high points such as it is. in a certain sense, the emphasis i want to make sense if you are thinking historically in the way i do, one way to try to tell the story is to try to understand the american constitution in many respects essentially as a political story. politicalstantial dimensions. to understand the whole phenomenon, you have to have a way to think of it. historians would say it is essential a a game. that sounds disparaging. certainly for all the law students. the essence of american constitutional and will some pivots around the exercise you preeminented and the place for the course in ascertaining the meaning of

particular constitution divisions. as an historian i would argue the significance. the most important constitution of american constitutionalism -- but if you approach it when the -- the preeminence of judicial interpretation will be the defining characteristic so fromsense the opposition her earlier between the kind of narrative political history on one hand and linguistic approach on the other might be restated in a somewhat more general form. you are ansay, if historian derail subject is not merely constitutional interpretation in the conventional sense of the term, it is also the matter of american constitutionalism more broadly defined. so in this sense, it has to raise the other branches.

think about the others in the federal system, competition as well as collaboration among the different branches and those are potentially political stories. askknow, i am not going to which of these forms trumps the other. in terms of my age, i have already said the magic word. the groucho marx show, a bird would descend because i used the word trump in a completely different category. of course, we are all dying to know who he would appoint as the next supreme court justice. basicind of lies out the questions. i want you to think about the intuitive form.

[indiscernible] i don't want to say too much that is article about the new originalist them i thought i should raise a few points here that are worth thinking about. here are the four objections. that i have about the new originalism. most of what i know about it comes from larry and keith whittington's efforts. to summarize and encapsulate the debate that has evil. randy barnett's pieces. there are so many of you, life is short, there are other things i want to do. you cannot keep up with all of the legal literature. a lot is repetitive so you can dig out the main ideas. so there are four problems. originalism-- new

pivots on the idea of imagining a constitution with the best resources available. ofing to -- using a set linguistic models to come up with the best reading of a particular vision. my first reservation is it is hard to know who the informed reader really is. there does not seem to be much originalistsng new as to who the reader as we are trying to conjure up. is it an informed citizen. is it an 18th century of literature? is he a juror? a lawyer, a judge, a patriot?

did he gain his knowledge from reading the virginia gazette? person.his who is the person reading the caused to shame do not know. secondly, even if we have reached a determination, even if the ideal type is defined, this informed reader is going to remain -- it seems to me -- this informed reader is going to -- an a print junction projection. not a really existing character to use that socialist phrase. he is not going to be a really existing character. he is a faker we are conjuring up.

he is a figment. are trying to say a person with certain identifiable characteristics, of course we do not know. will we find commentaries? or will we find a martyr? his favorite novel? we have no way to answer these questions. are creating seems to me to be an ideal type manufactured or created in a present for our own imaginative activities and not a person who really existed in the past ended -- and if that is true, in that sense it seems to me this reader cannot fulfill the constitutional functions that originalism was intended to perform. the best reading of the constitutional set. that is to say of the

identification of the ideal reader, using these literary resources, is essentially a modern creation, in what sense is that going to be a constraint on judicial concession? ae whole point when it became hot issue in the 1980's, its great appeal was supposed to be that originalism would limit the scope of judicial discretion. instead of having a good feeling about the meaning of the constitution, certain constraints would be proposed to limit the amount of discretion, the kind of value-driven discretion that a judge or justice would read. maybe that justice had read too much from two writers i have read. who knows? --be they had read i rant

ayn rand. if this figure who becomes this something we have to create, it is hard for me to understand how the limited could be incretion effect. so i see this as one of the essential characteristics. and i see this as closer to my transition point, the positive of what -- what i hope would be the positive part of my argument. the final problem of new or resting pivoting as it does on the idea you can ascertain some sense of meaning using some array of literary resources, it is very difficult if not impossible for me to understand how would this model of interpretation possibly take account into what every historian agrees on.

from the mid-1960's through the crisis of independence that this incredibly fertile, creative, dynamic, much intested chapter or volume political and constitutional thinking. and words whose meeting might seem obvious that one point come under a lot of pressure and apply new meaning and there is no simple way you can reconstruct what those things are without reconstructing the debate in which those meetings were being discussed and actively altered or transformed. there trying to trace pressure they come under and some scholars refer to this as some kind of conceptual change. others, you know, take a number of terms. the terms we would use here are significant terms.

for example, constitution. constitution arguably mean something very different in 1787 from what it meant in 1776. the bill of rights. as bill mentioned a little book called declaring rights. the bill of rights was very temperate in 17 -- different in 1789 than what it was in the 1770's. when we mean by a well-regulated militia? objection, and i think the one that is most important and goes beyond having a little fun with the reader, is historically, a substantive way, that the whole issue of constitution, what you are struck with is an array of meaning in the context of the debate itself in the idea there is a kind of simple, essential,

linguistic set of moves you could make. most historians have work that into their experiences being a deeply problematic, and deeply flawed conception. so, those are my principal objections and let me turn now to the positive characteristics the phrase i am trying to invent or market or purvey or whatever -- historical originalism. scholars in the audience and some of the law know, there was an interesting article published in 1987 by jefferson powell called rules. but heot an historian was very sensitive to the nature and i think by

definition he was an old -- wealist identifying band of brothers who care about this. he wrote rules for originalism. not necessarily an historical exercise, but he wanted to warn other original lists of some of the factors they had to keep in mind. he came up with 14 roles. i have about 20 or so minutes left and i planned ahead. i wanted to model my talk on what he was trying to do. so i have seven roles. if i have time, i might want to about justiceords ginsburg as an example of historical originalism. we might not have enough time but if the dean gives me the hook before i get there, i will find some way, but so let me --

.o let -- so let me start let me just -- let me just say something about what i tried to do in my book original meaning. once i got to stanford in 1980 and try to decide what my next project would be and to my original intention was just to write a long essay on a treaty of the constitution and try to work out what i thought was a model of historical originalism and then it became a hot subject and i said, there is a lot more going on i should write a book. it took me about a decade to write it and i am proud of the results. definitions,three three complementary definitions. in four categories of evidence. first, as a matter of terminology because i agree both with larry but also with james

obtain, if we aspire to inspicuity, precision literary expression. when i first started working in the expression, original intention, original understanding, were used somewhat loosely or should i say permissibly without careful attention to the particular content. meetingd the original -- meaning. maintain the original meaning would be to focus on the intentions. an alternative form of intentionng original would be to understand the intention of the ratifiers so i wanted to do that. intention with authorship. authors have intentions when

they write books. readers have it intentions when they read books, you know if you are a ratifiers. you are trying to understand what someone else said. it is a bit of a trip take here. text, authoritative intention, ratifying. the key thing if you are an firstian is our obligation is to be faithful to the nature of the evidence. to be as conscious as we possibly can be about its possibilities but also its limitations. quick aside -- if any of you are seriously go forward.ou can but from this point armored and forever more, you have to be biography ofth the madison's notes and debates.

a principal source for the debate. weekould be coming out any now i'm constitution commentary. i have a lot of criticism of the arguments but i have a great degree of respect of what she has tried to do. you are anif historian and the full sense of the term it is not enough just to read the text, sometimes it really matters to know the text as an artifact. as a parchment. it's physical qualities might actually be important. start to think about this analytically, therefore categories. two i thought of as being textual. from the federal convention of 1787 with a few materials directly tied to what the

framers of the constitution thought they were doing and then of course the debate from the and thetion convention public debate. so again, intention, understanding, two sets of big .ocuments -- one regional two sets of sources. then two other different sources which i thought of contextual which should be brought to bear. one of those is the zeitgeist. were heirs to a rich tradition of constitutional thinking. they wanted to know something about how it was in montague. who were not household names but they are among historians. maybe machiavelli. there is a big body of learning out there and the framers were free educated characters.

the book called the zeitgeist, probably not the best bu everybody like it. native cooki am a county democrat, you would want to know about their political experience. a bunchys, they are not of theorists working in their closets. figure thingsg to out. the guys who framed the constitution and ratified it, they have been political actors. their sense of what they are trying to do and things they were worried about were obviously shaped by their participation in fairly john mack a key events that we call the american revolution. eventsairly dramatic called the american revolution. maybe i should go back and write some more about whatever but that is the kind of -- the kind of -- the microscope that lies

down is the basic scope of stuff of my approach to being an historical originalist but it does not tell you much about what it does so let me go through it point by point. first and, you know, generally important, historical originalism is not a theory of constitutional interpretation as we usually use that term. it makes no normal suggestion as to how the constitution must or should be interpretive. for the lawyers are legal scholars or commentators who counsel them or who are prodded by their judgment, who criticize their work and the outcome of their work. different apply a trade. someugh i am proud to know things and even participated in

a hearing 30 years ago, no historian can master the rules of civil procedure, you know, i would be really puzzled to come definition of jurisdiction and until you have jurisdiction, what you have? so there is a whole array of roles out there. that we will never master. so historians as such cannot really be legal interpreters in term.rious sense of the that is not an option we have it not in some ways, if you are, you know, truly focused that is an obvious defect in the school of thinking i am trying to talk about. so that is the first point. the second point follows from the first. the essential function of being historical originals must therefore be critical in nature.

obligation is to provide a coherent set of messages for understanding because to two second, it should offer a valid perspective to evaluate the merits of legal judicial argument. historical originalist, your function probably is to be i don't want to say a skeptic, but it is to engage critically with the kind of historical lawyers, forwhich their own purposes, will engage. ourassumption is sensitivity to the complexity of historical phenomenon to reconstruct them give an authoritative basis on how well or how badly lawyers and jurists instruct the jury. my record in various places for the noun saying justice scalia's

record, which i think is a travesty of the record not to understand the case. finish., from start to no historian would ever use a 1960 quotation to illustrating 19th-century attitude. it moves than the other direction and it moves only in one direction. no historian would ever take a theof provisions where language of right to bear arms in the cause to sugars from using the phrase people to using the phrase person and say even though the language changes we change the more things the more they stay the same. if the language has changed, you would have to assume it is changing because some new factor, some anomaly is appearing that you have to explain. and that is the only's -- that is only the start of where we disagree.

that is a good example. it seems to be the most important function in historian an serve would be to provide rerd of the misuse. a record of the ways in which lawyers do. new originalism do not when to use this evidence at all. they want to use it, it seems to me, very incorrectly, the kind of historical evidence i would rely on is acceptable for new originalists if you use it to views.ate linguistic if you try to tell a political story, you know, an explanation of what the actors thought they were doing, then you move into a different category. you are moving -- not the linguistic move. that is old originalism. so does have some validity but only -- i think -- it even so, in anyc arguments,

number of opinions, whether they are overtly involving the original so it should be a major function. indiscernible] when i am trying to describe his historical originalism should operate as a dozen other realms. what do i be? many readers, and i think ordinary citizens think that the value of doing history is to learn lessons about the past. the famous statement, he who forgets the past is condemned to repeat it. most historians would disagree. most historians would say the real function of history is to encourage us to distinguish the past.t from the not to allow us to oversimplify. not to make an analogy between event a hand event be.

event a and event b. learning about the past, it's morals. i think to some extent that in consensus with what i tried to say already. in terms of thinking critically, how jurorsevaluate and lawyers would try to learn lessons from the past. from 1787 up to 1967 or whatever. we would want to say well, it is complicated. the past was different. you can only make sense if you try to understand what the sources are. that was my third point. my fourth point, the primary

starting point for historical originalism, it seems to me, is to describe a set of debates .nvolving a diverse set so to be an historical originalist means you may not be as and tend as the originals would be because for a variety of reasons you are skeptical. pure unadulterated reform but what we are dealing with is a set of highly charged debate so what we want to do, what our contribution not to be as we need to recognize that the actors much share a common -- must share a common vocabulary. you cannot have a serious debate unless there is consensual overlap so they know what the other is saying. it you also have to recognize in any debate the act yours who participate were trying to

-- iscernible] our goal is really to try to construct a set of debates and we do not have to concede that every debate made about the constitution has equal value. nutty or atpletely least easily disparaged. not just a plain and cut first amendment rule. ways to tryfferent to weigh the respective importance and influence, i should say the representative quality of different kinds. historians can reach conclusions. of the origin of the second amendment which emphasizes the idea that it was not about the militia and not about and in good individual right of self-defense, a was notaw right that fully constitutionalize.

there is no barrier to saying some stories are more compelling than others but when you reconstruct the debate you have to recognize there was a debate. and because it is a debate, some people will be artful and manipulative. you have to be sensitive to their manipulation. it follows from this to the fifth point, and i am not sure this is a perfect list, i probably need to refine up but i will not swear by it but we do have to recognize -- and i think this follows what i just said -- that the text we interpret involving multiple parties who are not always involved in direct conversation with each other. political debate in this sense it seems to me has to be in some ways distinct from the ordinary conversations which, as i dispelled it, are from modern linguistic analysis. account and aher

more theoretical account as to what the debate is really about. how we try to think about the nature of political debate and activity. , back in theker 1980's did a book called the tragedy of rhetoric in which he actually -- before the stuff was readily available, william riker tried to identify the core statement of the controversy and e numerate or framed the rhetorical structure of the debate. theory of harris statics, a way to think about rhetoric. i think we need that kind of theory. -- i do not on think it identifies a row -- and that has to be then finally, to concluding points.

a compelling theory of for historical originalism could assume that beyond the task of importing meaning to any constitutional provision, interpreters need to understand that to deal with the american constitutionalist tradition and some broader sense -- what i want to say here is it is not the best formulated idea but it goes back to what i said earlier, that the american constitution interpretation is not merely this. it has a collective history of its own. it is a story that embraces different levels of government, different departments, and a wide array of issues. to break it down to a cross anus inquiry it seems to be adjustment. what i am doing here is making a bid for constitutional history.

an argument that might be directed as much against my fellow historians think my work is old-fashioned, good stuff in the 1920's, 1930's, a bit dated today. i happen to think they are wrong. i think i have an obligation to contribute to this debate. that i do think if you are an historical originalist you have to remember there is a larger story about the formation of the republic. i think it restates a point i have already made. history is a discipline. study of foremost a origin and i often ask my students, my undergraduates, which do we care more about? origins or consequences? we usuallynswer is, know what the consequences are. right? we usually know what did happen. we know world war ii.

we know how the cold war ended. tois much more difficult explain how things began. the hard work of history is about origins. pushing the story backward in time. knowing something about the second treatise if you want to know about jefferson and 1776, then you have to know about 1689 and 1690. that is part of what historical originalism should do. provide a deep background and count of the sources and origins of constitutional ideas in 17 87, 1785, whatever. but historians also think in addition to being a story about origins, his story is necessarily a story about change. a story about change over time. in this sense, the whole fiction , thee new originalism

meaning of the text was locked into it. no one understands that his legal fiction, they would say it is completely nutty. you wake up in the clauses still there and now you have to interpret it. it is fine to say the executive powers should be vested in the president of the united states. that is great. or sixr years later years later when you have the debate, what is the executive power? you have to, you know, the story goes on. it in ways that still echoing our jurisdiction. so stories about originalism is as much concerned about the background of certain terms, certain concepts, necessarily you have to think, you cannot off from itsit origins or consequences or later application.

historical originalism has to carry the dimension of historical inking. follow the story out. figure out the appropriate punctuation points, knowing where was introduced. language,isonian ascertained, liquidated, and judy kate at. that is -- adjudicated. that is my basic argument. i wanted to wrap up with two rgb. not to be confused withrg3. and i am aware of the difference, which is found. -- i remain an active originalist not just in terms of academics. .nd i have written for briefs

over the last decade and a half the supremeen to court. the most recent was in the arizona state legislature versus airs on a independent redistricting thing case. i did that at the request of seth waxman who argued the case commissiondistrict and felt there was a stronger dimension to that case. that was a novel experience for me because there were deadlines that could not be extended and i had to do it all myself. if you want to be an active a couple criteria click in. i think it is legitimate to support causes in which you believe. legalok to be a political

activist. a whenever you do it, you want to make sure you are -- that whatever you write is consistent with your scholarship. so whenever i have written a brief i have tried to follow the general set of norms laid out about norms and evidence. i try to stick as best i can as the model of argumentation. i happen to believe that justice ginsburg, the swing vote, i happen to think justice ginsburg got it right. but it is an interesting story. it is a powerful dissent. it is not weekly worded. istice thomas paused dissent off the chart in terms of -- bitter. it does not really focus on defense. -- hisef went at this

argument -- the core of his argument from an originalist respective, there is a lot of originalism in it. he spent a lot of time quoting constitution to demonstrate the term legislature to refer to the institution of the legislature and know whether entity. and he does some other stuff to kind of say, the order of of legislature. an institutional body. you know, it is hard -- you know -- i try -- we understand where he is coming from. historicalnk as an originalist justice ginsburg got it right. why? brief as i argue in my and i think the opinion picks up. one of the core values of american constitutionalists in the believee is

that people have the right to alter and abolish government and here's the key thing, alter. as locke says and does i think most of american revolutionaries believe, the power originates toh the people themselves use the phrase that my friend, that larry kramer likes to use, the people themselves. get into that debate because it will be a big digression at this point but that fundamental notion that the legislate power is a delegated power from the people themselves. the people of a right is constitutional sovereigns -- to bring james wilson into the story -- to decide how the legislative powers will do this. arizonatate of

ultimately has a state for referendum used legitimately under their state constitution to set up a commission, that seems to implicate the fundamental constitutional value. there is no question if you ignore revision of list like chief robert's descent, -- dissent, is pretty good. he is a history major at harvard. it is a very strong opinion and i think the linguistic part of it is pretty good on the other hand, it seems to me, if you are an historical originalist and you construct that larger body, justice ginsburg has the better argument. include. it not chief justice roberts answer would be, no constitution were amended to specifically allow revise theo

legislative power. that should be the necessary legislative step. but that is the deal and i think as an historical originalist it would be a bad idea. there were a lot of us couldn't tell you about shelton kelly but i will let that go. i think what justice ginsburg said remains one of the most powerful examples of modern legal writing i know of. is a great set of debates. i do not know how you guys would answer by original intuition. new originalism, but you guys can keep that to yourselves. what do i know? i am just an historian. thank you very much. [applause] >> we will take three questions.

greg's i wanted to offer you an olive branch. an>> i want to offer you olive branch. i do not think you can trump his in --al -- [indiscernible] it does seem to me you do not compete in that sense and to have your second point in expertise to offer a theory of interpretation. right to go after justice scalia pauses store: todence but it is possible care about historical facts in a much narrower sense. you care about it in the sense -- a big thing. you could be like larry or others and care about a very

narrow historical fact. namely, what was the intention? you do not mean what did they mean to achieve but you mean what did they mean to achieve. semantically, what did they mean to achieve. sayill have something to about that, but it is not as if that is a disagreement because you take no position on the normative theory. you are a whole list rather than a clause bound in temperature. event, all of branch. you do it you do, larry can do what he does, the ships can pass in the night and nobody is at fault. prof. rakove:: after first conceding that i am incompetent

to do legal interpretation in any proper sense of the term, i think i would still say that any interpretation of the constitutional clause should be an informed understanding and that informed understanding i think would depend upon telling the kind of political story that i would provide. i do have a model. model is the wrong term. i do have a notion as to what kind of historically engaged properly instructed and i do not instructed, a properly constructed opinion. i think, you know, any clause a serious explanation

of how it found its way into a cut -- the constitution. justice black, the first amendment. so on and so on. maybe a quarter-step toward saying the historical context of jurisprudence. it you are right, they are not in direct competition but having ifd that, i would be curious you had properly constructed, here are two ways to think about the constitution. historical one would be more popular and larry claimer would be happy with the result. larry? [laughter] so, one of the most

illuminating comments was when you said, there is a lot of law articles to read and you read a couple and the rest is all repetitive, right? so if you think about the way an historian would approach the contemporary debate over beennalism, it if it had an historical debate, i do not think you would begin -- if you had a graduate student who wanted to begin -- i do not think you would say, let's just the restuple articles is probably repetitive. i think you would say you would want to really get into the literature in figure out what the positions are. so the first thing i would say is that your -- know rakove: what they it's a, if you know the first of amendment stuff, there was a

standard model whose foundations -- >> just a couple points about the things you said in relationship to the actual literature about originalism. so the first thing is, i think your dichotomy among these two approaches, right, that we have to choose between looking at a narrative versus looking at dictionary definitions, is a gross misrepresentation of what the new originalism actually says. hand, it says in order to understand what the words mean, what the communicative content of the it ins we have to put context. we have to put it in the context of the narrative. that is the only way to figure out where ambiguity of -- where ambiguous terms are used, where we are trying to figure out the what of an open term of

was actually communicated. on the other hand, i think new originalist have been pretty consistent about disavowing the idea that we can just look terms up in the dictionary. the academic theorists. judges do that a lot on dictionary definitions. that does not mean the only alternative is the narrative. there are other ways to figure out what we mean. historical linguistics look too get large amounts of information about how words were used. the second thing i would like to say and i will stop iran the end than on with -- rather going on with all of your problems about what the new original said was you say that new originalist observed the way we figure out meaning is to create this legal fiction of an

reader.st -- idealized if you had actually read my work, for example, you would know that a large part is precisely devoted to attacking that idea that the way to determine original meeting is to project a hypothetical rational or reasonable person and then reconstruct the way they would have understood that. my position and the position of most new originalist now is that we need to figure out the way real people understood it then. i want to say one thing that i really agree with that you said that i think was very important. you talked about the idea that words changed in their meaning and that at the particular time the constitution was drafted in 1787, a lot of ideas were in

flux and some of the wordsmith had contested meaning and it is possible some of the key concepts in the constitution were therefore and determined, that there was a range of meaning. key ideas off the the new originalism is to acknowledge that fact and say we cannot be bound by an original meeting that was not there. , somethinge a range we probably agree with, but new originalist do not think every provision in the constitution has a fully determinant meeting. the whole point of new originalism in some way is to unite that. kyle: i left the whole construction out of the idea. there are two dominant concepts in literature.

determine whatto range has a fixed meaning that you can identify and then to identify what to enter but, what is left to the realm of construction where a thing to quote madison, i think would be somewhat synonymous so i certainly agree on that point it is a measure of economy appear to develop it further. to go back to the prior point, i thed still want to say that appropriate content has to revolve around the actual political discussion as such. that they are not incidental. relative -- it is very difficult to understand how

to escape the political narrative. a political historian, i am not -- well, i am tooting my own form but that is the way i think about it. that is the major constitutional deliberation. it could be the most monday departmental subject that where some buzz word term is introduced and acquires a life of its own. this is just one example of how linguistic innovation takes place in practice. at the end, the proper context -- the essential political context is of revolutionary political decision making. i think it really represents the distinctive viewpoint. you can as i am an historian as bill described me as being. a cook county democrat that i

the experienceas of trying to make sense of constitutional government in the decade going back to dependents that was the formative basis on which these people were acting. >> i want to make a quick comment about what seems to me -- i am not a trained constitutionalist but i do history, particularly documentary history and it seems to me that one of the things that strike me as an outsider with regard to the originalist debate is a sense of artificiality about it because of not really understanding the documentary sources that must have informed some of the terms that are embedded in the

constitution and i will use two examples. trial by jury. what does trial by jury mean. the historical in events, the seventh amendment, but the supreme court justices did not understand exactly what was understood by trial by jury. the other is habeas corpus and the guantanamo bay cases. some amicus briefs and that context. attempting to explain exactly what the practice was and it seems to me the fundamental bottom line is it is extremely hard to do and it is convey understand and that understanding in the academic process of briefing the court or providing articles. you. rakove: how would

distinguish a concern with a particular conception or a right which is the other kind of institutional arrangement which are the essence of constitution making? right? i am some extent, i think concerned more with the political mention of constitution making then with the right spaced. a point ofake addressing this as i did once or twice before, it goes back to there is a really significant shift in how americans think about the very purpose and function of the bills thearation of rights from late 1770's to 1780. the eight initial bills of right in the state constitution, only two were actually incorporated.

that the americans adopted in the 1772's 270 80. -- 1770's until 1780. only two. the remainder were somehow tied constitutions of making but actually not constitutional and therefore. i 1789, madison had worked through it. if you have a bill of rights, you do not when a set of monitoring principles, you want a set of legal commands. so, that is a way i think ultimately to try to combine on the one hand with institutional conventions on the other hand. a separateike structure in rights and there may be somewhat different moves you have to make. thank you very much. [applause]

>> thank you for a wonderful talk. i hope you will join us at the reception to continue the conversation. [applause] >> i am a history buff. i enjoy seeing the fabric of our country and how things work. tvi love american history and artifacts. they didno idea history, that is something i enjoy. >> i love american history tv. it gives you that perspective. >> on the c-span family. announcer: this year, exploring american history. recent visitat our

to long beach comic california. you are watching american history all weekend every weekend on c-span3. rancho los alamitos is one of the rare sites that has a continuous history lasting more than 1500 years. if you follow that chain of occupancy, you are looking at the development of southern california. the site is important because it is where god descended from heaven, gave the laws to the people and descended back up to heaven. made tothe floor is give you a good sense. 3000 acres given unde