A Newer Originalism: Book History and Constitutional Interpretation

The following guest post is by Drew Starling, a PhD candidate in History at the University of Pennsylvania, and Sean Nadel, a JD candidate at Columbia University.

The recent passing of Justice Antonin Scalia has given new relevance to debates about constitutional interpretation with some questioning whether originalism will simply fade away. Though the survival of originalism, absent its most renowned advocate, is still an open question, many of the criticisms of originalism will persist. Let us suppose that Lawrence Solum and Jack Balkin are right–that originalism will outlive its now-deceased standard-bearer–must it maintain the same shape that it had during his lifetime? Towards the end of Justice Scalia’s career, some legal scholars began advocating that originalists and new originalists abandon “law-office history” in favor of the methodological rigors of intellectual history. Above all, the methods advocated have been those of James Kloppenberg, Quentin Skinner, and David Hollinger, which privilege the linguistic context and semantic content of texts and, in this case in particular, the Constitution.

While the adoption of such methods would undoubtedly better ground legal arguments from history, they alone are insufficient, especially given originalism’s shift from a focus on discovering the original intentions of the framers of the Constitution to new originalism’s focus on the original public meaning of the text. Such a shift entails a change in belief as to where meaning inheres. Theoretically speaking, for originalists, the author endowed the text with fixed meaning at the time of writing. For new originalists, the meaning of a text is determined by the ways in which particular historical or imagined historical readers would have made sense of it.

With the adoption of such a method, the history of reading and reception, to which Saul Cornell has briefly alluded, becomes key, as do the history of the book’s methodologies more broadly speaking. Book historians, following the cue of bibliographers, have long grown accustomed to the notion that ideas never travel through reified space. They are not transmitted telepathically, but are mediated by a number of actors–authors, copyists, editors, translators, publishers, compositors, and printers, just to name a few–each with his or her own intentions in doing whatever he or she does. They are also mediated by the material realities of textual transmission–the physical form that the ideas are given by which they are transmitted to readers–and the interpretive apparatuses with which they are surrounded. Increasingly historians of the book are making intellectual historians aware of the fact that the meaning of a text, formed by a reader, is not only determined by the semantic content on the page. Following bibliographer D. F. McKenzie, we may say that “forms effect meaning,” too. While readers are not passive vessels into which information is poured, their reading is constrained in many ways. To study reading, or in this case, original public meaning, is, in part, necessarily to study the material forms and interpretive apparatuses that legal documents and documents relating to the Constitution have been given.

Among the key texts, if not simply the key text, used by originalists and new originalists to interpret the Constitution is The Federalist. The Supreme Court cites The Federalist more than any other secondary source.  From 1961 to 9 July 2016, the Supreme Court has cited The Federalist in 331 separate opinions. The Federalist is broadly used, but perhaps, its use is more impactful in cases where the balance of power between the national government and the states is in question. From 1980 to 2000, there were over 70 opinions per decade that cited The Federalist. 2000 to 2010 saw a decline in the number of opinions citing The Federalist while the current decade is on pace to set an all-time high for citations with 64 already. While Justices have been ready to cite The Federalist, they appear to have paid little attention to what Federalist they have cited.

In 1961, four editions of The Federalist were published: Fairfield’s The Federalist Papers, Wright’s The Federalist, Rossiter’s The Federalist Papers, and Cooke’s The Federalist. This wave of publications was a product of and stimulus to the rise of the movement that would become originalism. Since 1961, Cooke’s and Rossiter’s have been the most frequently referenced. Immediately after their publication in 1961, Cooke became the most commonly cited edition in Supreme Court opinions. Before 1980, Rossiter was only cited once while Cooke was cited nineteen times. However, by 1990, Rossiter had outpaced Cooke. From 1990-2000, Rossiter was cited thirty-four times while Cooke was only cited eighteen times, and from 2000-2010, citations of Rossiter again outnumbered Cooke twenty-five to nineteen.

The differences between the two editions are vast. When publishing his edition, Jacob Cooke set out to provide the first “definitive edition of The Federalist, the most significant contribution Americans have made to political philosophy” (Cooke, The Federalist, ix).  In a review of all the 1961 editions, Douglas Adair noted that Cooke’s edition was the most academic, providing “the printing history of the individual essays” and tracking “the changes that Publius (Hamilton and Madison) made (or sanctioned) in the primary newspaper text when it was reissued in book form in 1788, 1802, and 1817,” continuing, “It was the first definitive, variorum edition of the text of this much reprinted classic” (Adair, “The Federalist Papers,” in Fame and the Founding Fathers, 254-5). In contrast, Rossiter’s text was published for the Mentor paperback series, “on first glance,” seeming “to be an edition chiefly designed for the student meeting Publius for the first time,” with “no annotation,” “no bibliography,” and an “introductory commentary” that was “merely historical descriptive, identifying the three authors and describing briefly the circumstances under which the book was written” (Adair, 256). It had one great redeeming quality. “In my judgment,” wrote Adair, “this index is better than that in any previous Federalist edition, including Wright’s and Cooke’s” (Adair, 256). He went on, “No matter how many hardcover copies of The Federalist a scholar owns, this inexpensive Mentor edition with its outstanding index should be added to his shelf if he has any expectation of studying the book seriously or using it as a reference work” (Adair, 257).

Here, we encounter an instance in which editional differences have clearly influenced the way that texts have been used–in this case, the very choice of the version of a text to use. As we have seen, since the 1990s, Justices have cited Rossiter more frequently than they have cited Cooke, choosing what is, by all accounts, the inferior edition, which ignores textual variations from historical edition to edition and which fails to explicate the publishing history of the work, which is crucial to developing an understanding of how it would have been accessed and, perhaps, understood by contemporary readers.  What is to account for this choice? Rossiter’s great redeeming quality: his index, which allows modern readers to quickly find relevant passages with ease. Where the Cooke edition gives nuance, notes, and explanation that may help to historicize the text and better contribute to a more accurate reconstruction of past reading experience, the Rossiter edition is likely used simply because it is more navigable.

The problem of editional differences in The Federalist, however, has a much longer history. The first 76 essays of The Federalist were published in a variety of New York newspapers, starting on 27 October, 1787, with The Independent Journal. Those 76 essays, along with 9 others, published for the first time, were printed and bound together into two volumes by the McLean brothers of New York in 1788.  While the newspaper editions would have allowed the text to reach a socially diverse audience within the state of New York and in several other states, whose newspapers printed the essays, the bound McLean edition gave the work the ability to travel, where it would influence ratification debates elsewhere. In both the newspaper and bound editions, the essays were attributed to Publius. The pseudonym recalled the Republican legacy of Publius Valerius Publicola. On the one hand, it provided the authors–Hamilton, Madison, and Jay–with the ability to distance themselves from positions held in the text. On the other hand, it gave the essays a sense of unity by attributing them to one author. It participated in an English-language tradition of pseudonymous journalistic publication made famous by Addison and Steele’s “Spectator.” It was also a ratification debate trope to use pseudonyms, such as “A Citizen of America,” “A Countryman,” “A Citizen,” and “A Farmer,” to allow typically elite, public authors to appear more common, universal, or like the everyman. The name, Publius, therefore, served to mask the authorship of The Federalist in a number of ways and for a number of reasons, and the authors were successful at maintaining the masquerade with only a few close contacts knowing who the three men behind Publius were.

In spite of its original pseudonymity, which should be of interest to an “originalist,” when The Federalist has been cited in Supreme Court decisions, the Justices citing it have tended to name the author of particular essays, and the naming of the author has supplied analytic content in support of arguments. In the 1997 case Printz v. U.S., the late Justice Antonin Scalia described The Federalist as “indicative of the original understanding of the Constitution,” thus, highlighting his credentials as a new originalist. 521 U.S. 898, 908 (1997).  He continued, “If it was indeed Hamilton’s view that the Federal Government could direct the officers of the States, that view has no clear support in Madison’s writings, or as far as we are aware, in text, history, or early commentary elsewhere.” Id. at 915. Here, conflict between the perceived intentions of the authors of The Federalist is used to interpret the text and to determine its usefulness for Constitutional interpretation. The opinion is theoretically and historically problematic for several reasons. If a focus on original public meaning was supposed to overcome the issues associated with original intent, then how does a search for Hamilton’s or Madison’s differing views in writing The Federalist help to do anything but defer the problems of intentionality to a secondary text?  If the author’s of a unified text can be pitted against one another, how can they be taken to show intentionality or original public meaning?  Furthermore, if one is seeking intent, whether of the framers or of the authors of the text that provides one’s view into original public meaning, is it not fundamentally to subvert the authors’ intentions to divide their text among them or to wipe away their pseudonym?  There is no sense in asking anyone to forget the authors of The Federalist, for to do so, would still not allow one to enter the mind of a contemporary of the text and the Constitution.  Nevertheless, one should be aware of the circumstances and reasons for the creation and maintenance of the pseudonym and for its eventual unmasking.  An attention to such details may help lawyers, judges, and justices to avoid anachronistic blunders that have them read Hamilton’s and Madison’s later politics back into the text that they wrote in 1787 and 1788 for the purposes of ratification.

Though we now know the three men behind Publius and which man was responsible for each essay, the path from pseudonymity to attribution was long and arduous. The authorship of individual essays of The Federalist was only settled by Douglas Adair in 1944. However, problems related to authorial attribution were rooted in early publication history, particularly, the work’s original pseudonymity and later discrepancies in the attribution of essays by New York-based publisher George Hopkins, who worked from a list written by Hamilton, and Washington-based publisher Jacob Gideon, who worked from a list provided by Madison. In the Hopkins edition of 1810, Hamilton had claimed many essays that were in fact written by Madison, which were later reclaimed in the Gideon edition of 1818. The naming of the authors, albeit not of individual essays, had an even longer history, however. The authors were first publicly unmasked by Paris publisher François Buisson in a 1792 French-language edition, published precisely as the French were casting off the constitutional monarchy and searching for republican models. The original public unmasking was a product of a particular French Revolutionary culture, exemplified, above all, by Paris’ Pantheon, that founded legitimacy upon reference to great men, not an American culture that fetishized collectively-authored or popularly-authored texts–a tradition in which the pseudonym had enabled The Federalist to participate. If one were seeking original public meaning, one would not make claims predicated on information that no participant in the original public would have had.  Even in an ideal historical world in which one could actually read a text as a hypothetical historical reader or, in this case, a “reasonable ratifier,” to read The Federalist as a work of Alexander Hamilton, James Madison, and John Jay would be to read it as a revolutionary Frenchman, or a nineteenth- or twentieth-century American.

In conclusion, editional differences make a difference. If one is to read The Federalist as an aid to understanding the original public meaning of the Constitution, one must, first, understand the original public meaning of The Federalist, itself.  While the methodologies of intellectual history certainly can go a long way in aiding our ability to reconstruct historical meanings of texts, they alone are insufficient. Many intellectual historians have begun to heed the calls of book historians, who have claimed that the historical meanings of texts cannot be understood by an examination of their semantic contents alone, rather we must also consider the material forms that texts were given, and the ways in which forms shaped readers’ horizons of expectation when approaching texts. To understand the original public meaning of The Federalist is not only to understand the words written by its authors, but it is, necessarily, to understand the words read by its readers, the meanings of which were informed by the different forms that the text took in its various editions. What, then, are we asking? Of course, we do not expect lawyers, judges, and justices to become historians. However, it is important that members of the legal profession pay attention to the ways in which forms, both of original historical documents and of modern editions, affect the ways in which texts are read. Engaging with the histories of publishing, reading, and reception may deepen our understanding of the original meaning of texts, what readers could possibly have known about them and their authors, and how such information would have shaped their reading. Nevertheless, this is not a one-way street. Historians can also do more to make their work relevant and useful, both theoretically and thematically.  If legal professionals and historians take up the challenge, and if originalism does, indeed, survive its most renowned advocate and practitioner, then, perhaps, it can be reborn on a more epistemologically sound footing.