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