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12/30/2011

Randy Barnett on Pauline Maier’s Ratification
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has a long post: Pauline Maier’s Marvelous Book, “Ratification”.

From his introduction:

Maier, a historian at MIT, has written the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments. …  It is a riveting story, engagingly told.  …

The story is also told in an extraordinarily fair and balanced way. …  So far as I could tell, Maier’s treatment is as “neutral” or “objective” as is possible for a scholar to be, unfashionable as those terms may be among academics.   It just seems like she is telling the story as it unfolded, letting each character speak for him or herself, while dispassionately presenting the various strengths and weaknesses of each. I got little or no sense of whose side she may or may not be on, or who she liked or disliked.

I’ve read Ratification and I agree with this assessment.  It’s a great book without an obvious agenda.  Professor Barnett also makes these interesting observations relating the book to originalist theory:

Given my views on originalism, some may wonder what implications Maier’s book has for original meaning interpretation.  I can think of one: this work undercuts claims by some originalists that, where the general public meaning of the text is vague, the ratification debates clarify that meaning by rendering it more specific. For example, some cite the Virginia ratification debates in which the Federalist defenders of the Constitution denied that states could be sued by citizens of another state in federal court as Article III appears clearly to authorize. The claim is that vague original meaning was “fixed” by the views that supporters of the Constitution offered to clarify meaning.  For example,the claim is made that that debates in Virginia support the conclusion that Chisholm v. Georgia, which rejected Georgia’s claim of sovereign immunity from citizen suits, was wrongly decided and that the Eleventh Amendment reversing that holding restored the original meaning. The alternative view is that the Constitution’s text did authorize such suits (though this may or may not have been an oversight), and once the Supreme Court correctly so held, Congress and the states revised the Constitution’s text to eliminate this federal jurisdiction over states.  (I have written about Chisholm here.)

Maier’s narrative makes it abundantly clear that few outside the walls of any convention would have been aware of any statements by the Constitution’s supporters, and convention delegates in one state knew very little about what transpired in the others. Although convention statements both for and against the Constitution are evidence of original public meaning, public statements by Federalist supporters cannot provide a definitive gloss on that meaning.  To the contrary, the very fact that the Antifederalists read the provisions in Article III this way, which then required an extra-textual admission of sovereign immunity by the Constitution’s supporters, is some evidence that the Supreme Court in Chisholm was right about the public meaning of the text.

Ratification: The People Debate the Constitution, 1787-88 is available from Amazon here.