ve 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 madison, the creation of 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 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 books were, "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 really know, 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

interested 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. as a boyhood reader of political leader, he was known as the conscience of the senate. that is something that no longer exists, as far as we could tell. if it does exist, it has been 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 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 thought, they saw, -- 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. why want to do tonight, is to offer a 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. helen irving, an australian historian for the overseer sydney. among historians, we are the 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. i want to start by posing a 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 decide which you think is the more likely or the more compelling of alternative? option number 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.

the kind of analysis of people trying to think historically would provide. choice number one, is intuition, 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 call the semantic meaning of 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? i would 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 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 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] prof. rakove: 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 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 this 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 type is defined, 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 characteristics, 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, as 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. a final problem of new 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 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 is, the bill of rights was very different in 1789 than what it was in the 1770's. words acquire an array of meaning in the context of the idea thatelf in the there is a linguistic set of moves you can make to come up -- being a deeply problematic, deeply flawed conception. those are my principal objections. let me turn to what are called the positive characteristics as i see 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. 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 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. it is a bit of a trip take here. 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, therefore

present from the past. it is not to allow us to oversimplify. not to make an analogy between event a and event b. historians think of the past -- we treated as a foreign country. we have to spend time learning its manners. we want to resist the easy temptation to oversimplify and crawl an analogy. in some sense, that would be considered to -- consistent with what i tried to say already. in terms of thinking critically, we want to try to evaluate how

jurors and lawyers would try to draw lessons from the past. from 1787 up to 1967 or whatever. we would want to say well, it is complicated. but also, the past was fundamentally different. you can only make sense of it if you understand what the sources of those differences 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. factors. so to be an historical originalist means you may not be as intense as new originals would be because for a variety of reasons you are skeptical. that such a thing exists in its pure, unadulterated, extractable reform. but what we are dealing with is a set of highly charged debate so what we want to do, what our

conjuration ought to be -- we need to recognize at the start that the actors much share a common political vocabulary. you cannot have a serious debate unless there is enough linguistic consensual overlap between the parties, so that they know what the other is saying. but you also have to recognize in these debates, active participants were trying to exploit the terms of discussion in a rhetorically artful way. originalists, our goal is really to try to construct a set of debates. we do not have to concede that every statement made about the constitution has equal value. now,statements, then as are completely nutty or at least easily disparaged. it is not just applying a pure 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 of statements. historians can reach conclusions. of theargued, on account origins of the second amendment, which emphasizes the idea that it was about the militia and not about individual right of , 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, people will be artful and some will be manipulative and how they use the key terms. 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 -- if i publish a version, i need to

refine it. 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 engaged in direct conversation with each other. political debate in this sense , it seems to me has to be in , some ways distinct from the kind of ordinary conversations, which, as i understand it, are the stuff of modern linguistic analysis. , i think we need a richer account and a more theoretical account as to what the debate is really about. how we try to think about the nature of political debate and activity. political scientist 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, riker tried to identify the core statement of the federalist controversy and tried to enumerate them to frame

a rhetorical structure of the debate. to think ofory political rhetoric. i think we need that kind of theory. the reliance on modern linguistics, which i do not think is key to reconstructing the political debate, identifies a real significant problem. finally, two concluding points. a compelling theory of historical originalism could assume that beyond the task of imparting meeting to individual constitutional provisions interpreters need to understand , that to deal with the american constitutionalist tradition, in some broader sense -- as i read this, it is not the best formulated idea -- but it goes back to what i said earlier. that the american constitution

interpretation does not exist only as clauses. 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 down constitutional interpretation into a clause or term focused inquiry, it seems to be an adjustment. what i am doing here is making a pitch for constitutional history. this is an argument that might be directed as much against my fellow historians, who 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 historians have an obligation or responsibility to contribute to this debate. but i do think if you are an historical originalist you have to remember there is a larger story about the formation of the republic that we ought to be telling. and then the final point, which i think restates a point i have already made.

is firsts a discipline and foremost a study of origin. i often ask my students, my undergraduates in stanford which , do we care more about? origins or consequences? the short answer is which do we care about more intellectually? the short answer is, we usually know what the consequences are. right? we usually know what did happen. we know who won world war ii. we know how the cold war ended. or puzzling to explain how things began. the hard work of history is really about origins. about pushing the story backwards in time. for example, 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 would be instrumental. that is part of what historical originalism should do.

provide a deep background account of the sources and origins of constitutional ideas in 1787, 1785, whatever. but historians also think in addition to being a story about origins, history is necessarily a story about change. a story about change over time. in this sense, the whole fiction of the new originalism, the six asian hypothesis, -- the fixation hypothesis, the meaning of the text was locked into it. no one understands that as legal fiction, historians would say it is completely nutty. you wake up, and the clause is 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 over the neutrality proclamation, it asks what is

the executive power? you have to, you know -- the story goes on. hamilton, madison started arguing about it in ways that still echo in our jurisprudence. so stories about originalism is as much concerned about the background of certain terms, certain concepts, necessarily is going to think that you up a part ofring time and then cut it off from its origins or consequences or later application. historical originalism has to carry the dimension of historical thinking. they have to follow the story out or try to think what is the its meaning has come to be liquidated. there have to be other kinds of decisions. that's my basic argument.

minutes, i few more want to wrap up with two points about rpg. i am aware of the difference. i don't think this had occurred to me. i am an active originalist. i have written for briefs. have written for the supreme court. the most recent one i did was the arizona state legislature. we heard a case that was resolved last spring about a year ago. there was a strong originalist dimension to that case.

the first time i had it written a brief in a weekend. there were deadlines that could not be extended. i had to do it all myself. if you want to be an active originalist, i think a couple of criteria i think it is kicked in. 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. it is not weekly worded. 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? he can as i argue in my brief and i think the opinion picks up. one of the core values of american constitutionalists in the late time 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. the people of a right is 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 chief robert's dissent, is pretty good. he is a history major at harvard.

you can know his tally harvard man, but you cannot tell them much. 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 the larger body of political traditions justice ginsburg has , the better argument. why would it not include a right? chief justice roberts answer would be well the only way to do this would be article five amendment. if the constitution were mended to specifically allowed the states to revise legislative power in that way, that would be the necessary procedural step. but that is the deal of justice asnedy, and eyes an -- and a historical originalist, i think it would be a bad idea. there were a lot of us couldn't tell you about, 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. that historical originalist him should trump new originalism, but you guys can keep that to yourselves. what do i know? i am just an historian. thank you very much. [applause] >> i think we have time for -- let's say three questions. >> i want to offer you an olive branch. so that we do not have to arm wrestle after this. can trawlhink you historical originalist him, but i do not think you can compete with it. -- i do not think you can trump , butrical originalism

i do not think you can compete with it. 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 into petition if it nominally defends its use. you are quite right to go after on thatal evidence ground. but it is possible to go after evidence in that historical facts in a much narrower sense. you care about it in the sense -- a big thing. you could be like larry or some 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. as linguists say, to what did they intend to infer? sense, i still have something to say about that, but it is not as if that is a disagreement because you take no position on the normative theory. you are handed a normative position in your sixth point.

your whole list, rather, is a clause bound in temperature. -- oliveent, all live 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: that is a fair criticism. if i were to expand the first point, what i would argue is that after conceding that i am first 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 of its origin. and that informed understanding, i think would depend on the political stories that i would

provide. so i do have a model -- model is the wrong term. i do have a notion of fancy as to what kind of historically constructedbably opinion would be. any controversial clause should be put under it a serious explanation of how it found its way into the constitution. you could have a lot of fun. you could have fun with justice black, the first amendment. so on and so on. so i think that is maybe a quarter-step toward saying the historical notion of the context of jurisprudence. they are notight, directly in competition. having said that, -- i would be

curious, if you had a poll, properly constructed, saying here are two ways to think about the constitution. one linguistic, the other historical. my guess is the historical one would be more popular and larry kramer would be happy with the result. larry? [laughter] >> thank you. >> so, one of the most illuminating comments was when you said, there is a lot of law review 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 originalism, if it had been an historical debate, i do not think you would begin -- you had a graduate student who wanted to

work on this -- i do not think you would say, let's just read a couple of articles, the rest is probably repetitive. i think you would say you would want to really get into the literature and figure out what thpositions are. so the first thing i would say is that your -- prof. rakove: one quick response. if you know the second amendment stuff, that is a great example of repetition. that there was a standard model whose foundations were quite -- >> just a couple points about the things you said in relationship to the actual literature about the new originalism. think yourhing is, i two -- your dichotomy between 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 that in order to understand what the words mean, what the communicative content of the text is, we have to put it in context. we need to put it in the context of the narrative. that is the only way to figure out where ambiguous terms are used, where we are trying to figure out the shape of an open textured term of what was actually communicated by the text. 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 tend to rely on dictionary definitions. that does not mean the only alternative is the narrative. there are other ways to figure out what words mean. now, historical

linguistics looks to big data to get large amounts of information about how words were used. the second thing i would like to say, and i will just stop here, rather then going on with all of the problems of your reconstruction of what the new originalism was. you said that new originalist observed the way we figure out meaning is to create this legal fiction of an idealized reader. i would say that if you had actually read my work, for example, you would know that a devoted toof it is attacking precisely 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 originalists now is

that we need to figure out the way real people understood the text. 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 determinatere under , that there was a range of meaning. this is why the key insights of the new originalism, to acknowledge that fact and say we cannot be bound by an original meeting that was not there. there may be a range of under determinate see --

underdeterminacy, something we probably agree with, but new originalists do not think every provision in the constitution has a fully determinant meeting. the whole point of new originalism in some way is to deny that. prof. rakove: i left the whole construction aspect added the story, just for the general audience. in the new originalism literature, there are two dominant concepts here the idea asian --ian -- six fixation. the aspiration to determine what range has a fixed meaning that you can identify with some confidence. then to identify what to enter but, what is left to the realm of conservation, where madison three would be somewhat synonymous so i

certainly agree on that point it is a measure of economy to develop it further. to go back to the prior point, i think i would still want to say that the appropriate context has to revolve around the actual political discussions, as such. that they are not incidental. they were eccentric for which these terms were debated. it is therefore difficult to understand how you would actually escape the political narrative. but i am a political historian, i am not tooting my own horn -- well, i am tooting my own horn, but that is the way i think about it. that does seem to be the nature of constitutional deliberation. it could be the most monday and -- mundane 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. i think, in the end, the proper context is the assumption of ofitical context revolutionary decision-making. that is what is good about original meaning. i think it really represents the distinctive viewpoint. i am the kind of historian build tried to describe me as being. stay -- sayy try to it was the experience of trying to make sense of constitutional government, in let's say the decade going back to independence, that was the formative basis on which these people were acting. you want to squeeze in one more? >> i just want to make a quick

comment about what seems to me -- i am not a trained constitutional historian, but i history,entury 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 struggle tests for the seventh amendment, -- the struggle context for 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. like you, i have done some amicus briefs in 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: right. your examples -- they are both blank space examples. one aspect of the problem -- it is not something i have thought through -- but how would you distinguish a concern with a particular conception or a right versus the other kind of institutional arrangement, which are the essence of constitution making? right? so to some extent, maybe because i hang out with lawyers, i think in some ways i am more concerned with the political dimensions of

the constitution rather than making them right spaced. i will make a point of addressing this as i did once or twice before, it goes back to my response. there is really a really significant shift in how americans think about the very theose and function of declaration of rights from the late 1770's to 1780. of the eight initial bills of right in the state constitutions, only two were actually incorporated. excuse me, of the initial bills of rights that the americans adopted in the 1770's until 1780. only two were incorporated in the text of the constitution. remainder, were in a sense external documents somehow tied to the process of constitution making but actually not constitutional in their form. by 1789, madison had worked through it. if you have a bill of rights, you do not when a set of

monitory principles. you want a set of legal commands. to the constitution where they are most relevant. so, that is a way i think we tried to tie in our concern with political rights. on the one hand with institutional conventions on the other hand. you have to type -- talk about structure and rights. and there may be somewhat different moves you have to make. thanks very much. [applause] dean. treanor: i'd like to thank professor rakove. i hope you join us at the reception to continue the conversation. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] american history tv on c-span. tonight at 8:00 eastern, barry

goldwater chair of american institutions at arizona state university, convicted in the dean,ate scandal, john talks about the discovery of the taping system. >> i was aware of listening devices. >> when were the devices placed in the oval office? approximately the summer of 1970. i cannot begin to recall the precise date. >> actually the date is a little wrong. february 16 of 71 is when the system was put in the oval office. the next was the room. later after that, the eob office. >> then on road to the white house rewind -- >> we all own an equal part of our country. already said today, we

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