Barnett and Lash on Maiers’s Book on Ratification

January 1st, 2012

Earlier this year I read Pauline Maiers’s book on the Ratification of the Constitution in the states, and the subsequent move to ratify Amendments. Barnett has some observations of what this book means to Originalism:

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 inChisholm was right about the public meaning of the text.  (Of course, one can see why a historian like Maeir who, in her NYT op-ed, makes claims about “original intent” might think otherwise, but she makes no such “originalist” claims in this book.)

It’s worth noting that Barnett strenuously disagrees with Maiers’s–an eminent historian–views on the Second Amendment:

The story is also told in an extraordinarily fair and balanced way. Having previously read Maier’s views on the Second Amendment expressed in a New York Times op-ed, I was on my guard for the sorts of biases one typically finds in historical treatments of subjects with potential contemporary relevance.

Randy’s long-time-friend-and-nemesis Kurt Lash disagrees:

Maier has indeed written a wonderful book. I am not sure, though, that its evidence cuts the way Randy suggests.

No one (that I know) believes that it matters whether the federalists knew what was being argued in the other state conventions. On the other hand, common explanations of the Constitution and its fundamental principles would be quite relevant to determining the likely understanding of those who embraced the document. Here, Maier points out that the basic arguments, pro and con, were established early in the debates. After the early heavy-handed actions of James Wilson and the Federalists in Pa. threatened to taint the entire ratification effort (wonderfully detailed by Maier), the Federalists across the remaining conventions uniformly presented the document as preserving the sovereign status of the states. As Marshall explained in the Va. convention (and as Hamilton repeated the next day in Fed. 81), Article III should (and would) be read in a manner preserving the sovereignty of the states and would leave the states as immune from unconsented suits for damages by individuals as the federal government itself.

The preserved sovereign status of the states was not presented as an “expected application.” It was presented as a bedrock principle (or “framework principle as Jack Balkin might call it) of the proposed Constitution. One can argue whether we should care about the likely understanding of the ratifiers, but there is no doubt about how the document was presented, or whether it would have been rejected had the post-Pa. conventions believed the document, properly read, erased state sovereignty. Nothing in Maier’s book suggests otherwise.

Barnett replies:

I do not really disagree with much of what my friend Kurt Lash posts above. I was not claiming that Maier’s book says much about whetherChisholm was correctly decided. And it does highlight that state sovereignty was an important principle throughout the ratification process. My point was a narrower one with which Kurt appears to agree. What Federalists in the Virginia like Madison and Marshall may have said in about the preservation of state sovereign immunity in response to the Antifederalist reading of what at least appears to be the plain meaning of Article III did not “fix,” liquidate or affect in any way the public meaning of Article III from what it would otherwise be, although it may be evidence of that meaning. On the other hand the Antifederalist skepticism of that claim is also evidence of what the words of Article III meant to a normal reader. I do think some originalists have suggested that we are bound by a meaning suggested by Federalist proponents of the Constitution that fixes or liquidates an otherwise vague meaning or, as I put it, provides a “gloss” on that meaning. I was not making a claim about whether lots of talk about state sovereignty in lots of conventions might signify that the public meaning of Article III silently assumed the preservation of the underlying principle of sovereign immunity for states akin to federal sovereign immunity. Perhaps it did. While I agree that there is nothing in the Maier book that undercuts such a claim, neither did I read anything that lent it strong support.