I recently finished reading Pauline Maier’s marvelous book, Ratification: The People Debate the Constitution, 1787-1788. 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 was made possible by the still incomplete Documentary History of the Ratification of the Constitution that now runs to 24 volumes, on which Maier based much of her research. The records of the ratification debates are notoriously incomplete but Maier is able to fill in many of the gaps with other sources.
Having read much of the surviving records of the ratification convention debates, I probably know more about these conventions than most people. Yet there was far more in Maeir’s book that I did not know than I did. Studying the conventions in chronological order makes far clearer the evolution of the arguments against and for the Constitution as well as the shifting tactics of both sides. You also learn about the differing political and economic situations of each state, as well as the biographical backgrounds of the major players, and many of the minor players as well. It is a riveting story, engagingly told. And the new paperback is just $12.91 on Amazon.com!
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. In addition to leaning one way or the other on the meaning of the text, there are always those scholars who perennially love or hate Hamiltonian, Jeffersonian, or Madison, etc. or those who root for or against the Federalists or the Antifederalists. 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.
In any historical work of this breadth, you are forced to judge the accuracy of the information with which you were previously unaware with the accuracy of the information you already knew. Through all this 480 page book, I found nothing at odds with what I thought I knew, giving me confidence in the rest. One reason for this, perhaps, is that Maier offers little information that is comprehensive enough to draw conclusions on original meaning — and she only rarely even suggests any interpretive claims. So in contrast to her op-ed on the Second Amendment, there is little or nothing with which to disagree on originalist grounds.
Which is not to say there is nothing of substance to learn from this story. Perhaps the most pervasive theme of the book is how widespread the pressure for amendments was by opponents, and even most supporters conceded that some amendments were necessary. Although I already knew this in general terms, it was most powerful to read accounts of the role that amendments played at each convention after the earliest ones. Reading this account makes it very clear why it was that the Constitution was so quickly amended — although (as I have written) Madison had to overcome much resistance among a Federalist dominate Congress to get it to take up the matter — and why the amendments proposed by Congress were so disappointing to so many of the Antifederalists. Indeed, the debate over possible amendments and whether their adoption should precede the adoption of the Constitution or come afterwards is probably the dominant theme of the book.
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. (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.)
No one should read Pauline Maier’s wonderful book looking for insights about interpretive methodology or the original meaning of various clauses. One should read this book if you are at all interested in how the Constitution came to be, and what American political discourse was like during this crucially important and formative period of American history. And one should also read this book if one simply wants an engaging and entertaining story that you may have thought you already knew, but didn’t really.
UPDATE: The Amazon sales ranking for Maeir’s book from Amazon moved up from over 19,000 yesterday when I posted to 2,391 today (though a link this morning from Glenn Reynolds no doubt helped a little).