they want from their visit. our city store staff recently traveled to long beach, california to learn about its rich history. learn more about long beach and other stops at www.c-span.org /citiestour. you're watching american history tv, all weekend, every weekend. >> up next, historian jack rakove on interpreting the u.s. constitution. he is the author of several books. one has the 1997 pulitzer prize for u.s. history. this lecture is about one hour, 15 minutes.

>> it is a privilege for me every year to be able to announce the lecturer. it is a privilege that share to introduce jack rakove. jack briefed me how to pronounce his name, i think i screwed it up. even if i can't pronounce it, i've admired his work enormously. his first book, "the beginning of the national politics," was just published. it's a study of the continental congress. i remember being so impressed by it. it is a pathbreaking work, and it takes a different approach to the continental congress from what we have seen before. what set it apart from previous work was that it very thoughtfully and engaged with the members of congress as

political actors confronting challenging issues in real time. he wrote in the preface, quote, "recognize a series of perplexing problems rooted in the distinctive character of the revolution and the dislocations it produced. novel issues, intractable problems, these were the usual determinants of revolutionary policymaking." this core approach of understanding, not just the ideology, not just the context, but very much the members of congress as political actors, is in approach that has informed his incredibly important scholarship through that time and he is very prolific and has a remarkable body of work.

republic.documents james madisonf the american republic. documents revolutionary, the new history of the invention of america. jack brings to all of these projects a deep understanding of ideology. and a deep understanding of legal doctrine. but he also brings to a sense of detail, the way that people are shaped by historical reality. his son, dan is joining us here today. he talks about the number of steps from the convention hall to the state assembly.

42. he uses that to give a sense sense of which one of the members of the convention basically ran from the convention to the assembly. and dan, as a young boy, counted those steps. that sense of concrete historical reality and then an understanding of the politics. which traces back to jack's childhood. his father, milton, among his "don't make no waves, don't back no losers." also, we don't want nobody, nobody sent.

and, as jack would say, he is a native cook county democrat and that brings a level of insight that sets his work apart. this is a time in which lawyers are so often trying to understand the constitution's original meaning, and i do not think there is any historian today so illuminated both the original meaning and its relevance. so, it is my pleasure to welcome jack rakove to the stage. [applause] prof. rakove: thank you for the generous introduction. this is a building i know quite well.

back in the summer of 2000, i taught a few seminars and constitutional history. we lived a couple of floors downstairs. at that time, i thought of 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 that has taken place in this community, the physical development and everything else is so much more impressive than it was a decade and a half ago. so, it is a pleasure. i feel i have certain ties to the georgetown law faculty in the student body. first off, 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 essays on the

judicial review they had a book, the free exercise of religion so i spent a lot of time reading blogs postings because i don't , i would not fully 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. which was an interesting challenge and project. i am proud to be part of the alumni -- i should say the distinguished alumni outside of chicago, david cole. and of course, because i am in original is him, a subject i have worked on and a long time, it is a privilege to be here with larry. not here today, but spiritually.

and randy, another cook county type , thinking about randy and larry's work, regionalism, is one of the big issues i intend to discuss this afternoon. i know the building, some of the faculty, the associations are quite delightful. it is an honor to give this lecture. politicalod reader of leader, he was known as the conscience of the senate. that is something that no longer exists, as far as we could tell. been does exist, it has occupied and we are not sure the next appointment will be made. it is safe to say this because randy is not here. i also admire the senator because he was a known advocate of gun control. he would not have regarded the second amendment as protecting a fundamental right to blow other americans away with gay abandon.

in some ways, i think i am proudest of having written a historian's brief in d.c. versus heller. representing a point of view which may come back into fashion. in whatever fortune province has in mind for the american republic. so these are delightful reasons to be here. before we go on, my talk is titled the superior virtue of historical originalistism. i want to talk about what it means to be an historian. what does it mean to be a historical originalist? most of my remarks will go into the -- explaining what that details. i want to begin with a personal confession.

if i want to self identify myself, i am an old originalist. what does that mean >? here are three meetings. i am one day older than the marshall plan, so everyone here can really calculate my birthdate in case it is a little foggy. i turn 69 in a 9 weeks and a couple days. i am an old originalist in that sense. not a spring chicken anymore. i am actively 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

issues when i was working on my dissertation. i was not interested in the jurer's financial aspect, but the impeachment of richard nixon. i come from a family of longtime nixon haters. so i have a natural interest in that subject. i am interested in war policy resolution. what role the congress places on the president's of authority. i was also a member of the committee against the war. an obscure group which filed a very interesting suit against defense secretary james schlessinger. arguing that all those members of congress who also held commissions in rotary -- military reserves should resign. under the provisions of the constitution which prevents

members of congress from holding office under the executive branch. as you start -- i am an old originalist. i've been thinking of this for 4.5 decades, going back to the nixon years. but this the point that really matters, i am an old originalist in another sense, meaning, i am not a new originalist. there is a whole school of saw, -- they new originalist them is a linguistic term. i am an old originalist in the sense that i believe in why any attempt to the original meeting of the constitution requires pursuing a serious form of historical analysis. that 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 the complexities 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 was to take the history, per se, very seriously. keeping in mind the difficulties working historian's encounter when they tried to make sense of the past. tonight, is to offer a possible -- positive account of historical originalist. i do not think that is a phrase which appears in the literature. maybe i am trying to point it or give it a currency but maybe it is not a bad way to try to say what 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 seriously invested in working through the evidence available that would and able -- enable people to think what did the framers of originally intend or understand they were doing. but that is historical regionalism. there is only a small group of people who are actively concerned with this. i keep thinking of the phrase from edward the fifth speech as rendered by shakespeare. we few, we happy 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. saul cornell at fordham. your former institution, would be the fourth. my young colleague at stanford

university. irving, an australian historian for the overseer sydney. we are therians, only one to take the issue of original is in seriously. if lawyers are going to do it, they are going to do it with their own expedience and alter your purposes in mind. but i want to try and present -- i want to start by -- usually when i start i have several starts. awant to start by posing simple, intuitive question to the audience. suppose you were ignorant, as i am sure many of you are, suppose

you knew nothing about the debates going on within the legal committee about the nature of ritualism. about what form it takes. somebody asked you to decide, which to potential ways to which you think is the more likely or the more compelling of alternative? one, old original them, you would want to create a detailed analytical narrative examines the framework of the constitution, the political debate over its ratification, and the decisions of the state ratification convention. of peoplef analysis trying to think historically would provide. intuition,er one, is is all in asking about. if you do not know much about the debate, that is number one.

option number two, larry, you can stop me at any time or correct me. we really want to do something different, you want to engage in a close analysis of individual clauses and keywords and phrases, resting on the best definition of those terms one could produce by relying on an array of literary resources. and applying the analytical approaches of modern linguists to develop a theory which we meaning ofmantic originalist. we have to try to think historically. the second is we want to thank linguistically. this is a vast oversimplification for reasons of economy. there are lots of ways you can quantify and refine and correct the notion but i think as a whole it is not a bad way to represent the basic choice

between what i think of as historical originalism them and what is now called new originalism. how to think about american constitutionalism more generally? argue, is a working 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 by the works of bruce ackerman, but we may talk about the founding. -- founding period, the

election of andrew jackson, the election of abraham lincoln and reconstruction. the new deal crisis. 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 of my modern political career, 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 that american constitution in many respects essentially as a political story. at least it has substantial political dimensions. to understand the whole phenomenon, you have to have a way to think of it. historians would say it is essentially a judicial game. if i say game, that sounds disparaging. certainly for all the law students.

the essence of american constitutionalism and will some pivots around the exercise you --exercise of judicial review. i would argue judicial review is the most significant component, but not the sole component. the preeminence of judicial interpretation will be defining characteristics. so the opposition i tried to schedule 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. that is to say, the real's -- the real 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 embrace the other branches of government. you have to think about the others in the federal system, it has to think of competition as well as collaboration among the different branches and those are essentially political stories. you know, i am not going to ask which of these forms trumps the other. in terms of my age, i have already said the magic word. at this point, if you know the groucho marx show, a bird would descend because i used the word trump in a completely novel category. of course, we are all dying to know who he would appoint as the next supreme court justice. oh, it would be the very best. [laughter] so, that lays out the basic options.

i do want you to think about the intuitive question i have raised. which side would you come down on? i would make the case for being a historical original is -- originalist. 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. again, most of what i know about comes from larry's work and keith whittington's efforts. to summarize and encapsulate the debate has evolved. i have read 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 figure out the main themes. so there are four problems, new originalism pivots on the idea of imagining a reader of the constitution with the best resources available, trying to -- using a set of 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 agreement among new originalists as to who is the ideal type of reader we are trying to conjure up. is it an informed citizen? we will have to use the male pronoun here, if we are doing with the 18th-century context. is it an 18th century of literature?

is he a juror? is he a lawyer, a judge, a patriot? did he attend college? did he just gain his knowledge from reading the virginia gazette? who is this person? who is this person who is reading the constitution? we do not know. secondly, even when we have determined, even when the ideal characterized,, this informed reader is going to remain -- it seems to me -- this informed reader is going to remain a projection of a contemporary modern and so it. not to be a really existing character, use that old socialist phrase.

he is not going to be a really existing character from the past. he is a figure we are conjuring up. certain identifiable of course we do not know. if we look at his bookshelf, will we find commentaries? or will we find a book of martyr's? what is his favorite novel? we have no way to answer these questions. the person we are creating seems to me to be an ideal type manufactured or created in a present through our own imaginative activities and not a person who really existed in the past -- 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. which was to try and limit judicial discretion, infidelity

of the best reading of the constitutional text. that is to say, if 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 discretion? the whole theory at the beginning, or at least when it became a 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 restraints would be proposed to limit the amount of discretion, the kind of value-driven discretion that a judge or justice could exercise. maybe that justice had read too much from two writers i have read. who knows? maybe they had read ayn rand.

which, these days, is incredible as it seems, is wholly plausible. but if this figure who becomes this vehicle, something we have to create, it is hard for me to understand how the limited judicial discretion could be in effect. these are three objections that i see this as one of the essential characteristics. the fourth is closer to my transition point, the positive of what -- what i hope would be the positive part of my argument. of new problem originalism, pivoting or resting 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 of whatever historians agree on. this was an incredibly fertile, creative, dynamic, much contested chapter or volume in political and constitutional thinking. and words whose meeting might seem obvious, one point come under a lot of pressure and acquire new meaning and there is no simple way you can reconstruct what those things are without reconstructing the debate in which those meetings -- meanings were being discussed and actively altered or transformed. so, some scholars refer to this as a problem of conceptual change. others, you know, take a number

of terms and try to show what has happened. the terms we would use here are significant terms. for example, constitution. constitution arguably means 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 main argument of that book the bill of rights was very different in 1789 than what it was in the 1770's. the fourth 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 as i see it, of the phrase i am trying to invent or market or purvey or whatever -- historical originalism. some of the scholars in the audience and some of the law students it know, there was an interesting article published in 1987 by jefferson powell called rules. he is not an historian but he was very sensitive to the nature of historical and i think by definition he was an old originalist identifying -- we

band of brothers who care about this. he wrote rules for originalism. 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 rules. if i have time, i might want to say a couple words about justice 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 -- so let -- so let me start. 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. it pivots on three definitions, three complementary definitions. in four categories of evidence. first, as a matter of terminology because i agree both

with larry but also with james madison, if we aspire to obtain perspicuity, precision in 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. i assumed the original meeting -- meaning. one method to maintain the original meaning would be to focus on the intentions. an alternative form of ascertaining original intention 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. text, authoritative intention, ratifying. the key thing if you are an historian is our first 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. i will do a quick aside -- if any of you are seriously interested you can go forward. but from this point armored and forever more, you have to be acquainted with the biography of madison's notes and debates.

a principal source for the debate. it should be coming out any week 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. a reminder if you are an 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. when i start to think about this analytically, thereforecategori. 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 ratification convention and the public debate. so again, intention, understanding, two sets of big documents -- 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. the framers were heirs to a rich tradition of constitutional thinking. they wanted to know something about how it was in montague. -- guys 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 but everybody like it. and because i am a native cook county democrat, you would want to know about their political experience. these guys, they are not a bunch of theorists working in their closets. they have been political actors. obviously shaped by their key events that we call 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. historians apply a different trade.

although i am proud to know some 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 up with a 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 any serious sense of the term. 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.

its 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. engage critically with the kind of historical reasoning in which lawyers, for their own purposes, will engage. the assumption is our 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. you know, from start to finish. 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 set of provisions where the 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 can say the more things change the more they stay the same. that is only the start of where

we disagree. that is a good example. 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 illustrate linguistic views.

even so, historic arguments, in any number of opinions, whether they are overtly involving the original so it should be a major function. many readers, and i think ordinary citizens think that the value of doing history is to learn lessons about the past. you know, 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 present from the past.

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 would be in consensus with what i tried to say already. in terms of thinking critically, we want to evaluate how jurors 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 involving 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. 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

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. some are completely nutty or at least easily disparaged. not just a plain and cut first amendment rule. there are different ways to try to weigh the respective importance and influence, i should say the representative quality of different kinds. historians can reach conclusions. on account 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 common-law right that was not 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 understand it, are dispelled from modern linguistic analysis.

what the debate is really about. how we try to think about the nature of political debate and activity. as william riker, back in the 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 numerate or framed the rhetorical structure of the debate. a way to think about rhetoric. i think we need that kind of theory. the reliance on -- i do not think it identifies a row problem that has to be -- and 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 focus inquiry it seems to be an 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. first and foremost a study of origin and i often ask my students, my undergraduates, which do we care more about? origins or consequences? the short answer is, we usually know what the consequences are. right?

we usually know what did happen. we know world war ii. we know how the cold war ended. it is much more difficult to 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. a story about change over time. in this sense, the whole fiction of the new originalism, the 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. but four years later or six years later when you have the debate, what is the executive power? you have to, you know, the story goes on. they argue about 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 just say cut it off from its origins or consequences or later application. to use madisonian language, ascertained, liquidated, and adjudicated. that is my basic argument. i wanted to wrap up with two points about rgb. not to be confused withrg3. and i am aware of the difference, which is found. i do not think -- i remain an active originalist not just in terms of academics. and i have written for briefs.

over the last decade and a half i have written to the supreme 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 with the redistrict commission 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. and, if you want to be an active originalist, a couple criteria click in. i think it is legitimate to support causes in which you believe.

it is ok to be a political legal 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. justice thomas paused dissent is off the chart in terms of -- bitter. it does not really focus on defense.

the chief went at this -- his 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 definition of legislature. an institutional body. you know, it is hard -- you know -- i try -- we understand where he is coming from. i still think as an historical originalist justice ginsburg got it right. why? argue in my brief and i think the opinion picks up. one of the core values of american constitutionalists in

is the believe 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 with the people themselves to use the phrase that my friend, colleague, and that larry kramer likes to use, the people themselves. i will not 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. constitutional sovereigns -- to bring james wilson into the story -- to decide how the legislative powers will do this.

if the state of arizona 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 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. chief justice roberts answer would be, no constitution were amended to specifically allow

the state to revise the 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. it is a great set of debates. i do not know how you guys would answer by original intuition. the new originalism, but you guys can keep that to yourselves. what do i know? i am just an historian. thank you very much. >> i think we have time for

questions. i would like to offer you an olive branch. [inaudible] it seems to me that it also means that you do not compete in that sense. but you have the expertise to the theory of interpretation defends its use. you are right to go after justice scalia on that grounds, but it is possible to care about facts in a more narrow sense than the average historian.

you could be like larry, or others, and care about mary -- very narrow historical facts. namely, what was the intention? you don't mean what do they mean to achieve, but what did they mean? to what did they intend to refer with the language? it's not as if that is a disagreement because you take no position on the normative theory. theoryded in a normative in your sixth point, but that is to become a lawyer with the rest of us. branch. olive you can do what you do, larry can do what he does, the ships can pass and a night and nobody is at fault. >> that is a fair criticism and by and large i accept most of it.

if i were to expand this point i think i would like to argue that after first conceding that i am incompetent to do legal i think i would still say that pending interpretation of the constitutional clause, it should begin with an informed understanding of its origins. that informed understanding would depend on telling the political stories that i would provide. notion asa model or a an historically engaged, properly constructed opinion would be.

i think any kind of request should be acceptable for a serious escalation of how its way into the constitution. fun withhave a lot of justice black, the first amendment. so on and so on. i think that is maybe a quarter saying, restore commotions and constitutional jurisprudence might be framed. but you are right they are not in competition. i would be curious, if you had a are two wayshere to think about the original meaning of the constitution. my guess is that the historical one would be more popular. larry? you.ank

most illuminating comments is when you said that there are a lot of lot review articles to read and you read a couple, and the rest is repetitive. if you think about the way that a historian would approach the contemporary debate over original is him, if it had been historical, i don't think you would begin -- you had a graduate student who wanted to work on this, i don't think you would say, let's read a couple articles and the rest 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 --

prof. rakove: one quick response, 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. so, on the one hand, it says in order to understand what the words mean, what the communicative content of the text is we have to put it in 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

shape of an open term of what was actually communicated. on the other hand, i think new originalists 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 words mean. historical linguistics look too data to get large amounts of information about how words were used. the second thing i would like to

to say, and i will stop here, rather than 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 idea least -- idealized reader. 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 words may have had contested meaning and it is possible some of the key concepts in the constitution were therefore under determinant, that there was a range of meaning. that is one of the key ideas of the new originalism is to acknowledge that fact and say we cannot be bound by an original meeting that was not there. there may be a range, something 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. professor rick kyle: i left the whole construction out of the idea.

there are two dominant concepts in literature. the aspiration to determine what range has a fixed meaning that you can identify and then to identify what to enter but, what is left to the realm of will 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 would still want to say that the appropriate content has to revolve around the actual political discussion as such. that they are not incidental. therefore, relative -- it is very difficult to understand how to escape the political narrative. but i am a political historian, i am not tooting my own horn -- 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.

the kind of historian that bill described me as being. not just a a cook county democrat that i try to say it was the experience 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. you know about 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. i've done some amicus briefs and that context. they were 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 hard to understand and convey that understanding in the academic process of briefing the court or providing articles.

prof. rakove: how would you 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? so to some extent, i think i am concerned more with the political mention of constitution making then with the right spaced. i will make a point of 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

declaration of rights from the 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 1770's until 1780. only two. the remainder were somehow tied to the process of constitution making but actually not constitutional and therefore. by 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. it sounds like a separate structure in rights and there may be somewhat different moves

you have to make. thank you very much. [applause] >> you are watching american history tv, all weekend, every weekend on c-span3. monday on "the communicators, the federal committee case and's .hair, tom wheeler he talks about the issues facing the fcc including net

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