Tuesday, June 21, 2016

Samuel Alito Channels Charles Beard (and maybe Sandy Levinson)

Mark Graber

When excerpting Evenwel v. Abbott for Gillman, Graber and Whittington, American Constitutionalism (second edition should be out imminently), I was struck by Samuel Alito’s comment that “power politics, not democratic theory . . . carried the day” when the original and Reconstruction framers determined the rules for staffing the national legislature.  This is the thesis of Charles Beard’s, An Economic Interpretation of the Constitution of the United States, which argues that the framing is best conceptualized as the victory of particular interest groups rather than as the realization of certain fundamental principles.  Beard made his claims about power politics at the framing to discredit the framers and originalism.  My friend Sandy Levinson, who should be dancing in the streets after Alito’s comments, makes similar observations when repeatedly insisting that only a lunatic could support government by a constitution rooted in the peculiar conditions of late eighteenth century and mid-nineteenth century politics that have limited, if not perverse, relevance for political conditions in the first decades of the twenty-first century.  The puzzle is how Alito, a notorious originalist (at least when originalism can be adjusted to support very conservative policy positions) continues to insist that Americans remain normative bound by the original commitments of framers he thinks were motivated primarily by desires for political ascendancy and hardly at all by timeless ideals that might inspire future generations

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