Thursday, August 24, 2023

The Flawed Arguments for Privileging Federalist over Anti-Federalist Advocacy as Evidence of Original Meaning

Andrew Coan

(coauthored by David S. Schwartz)

As we explained in a previous post, Anti-Federalist advocacy during the ratification debates sheds significant light on the background assumptions that informed and "contextually enriched" the Constitution’s original public meaning. More specifically, that advocacy is strong evidence that many competent speakers of late Eighteenth-Century American English read the Constitution to create a government empowered to address all national problems. Nevertheless, the legal literature overwhelmingly focuses on Federalist interpretations of the Constitution, disparaging or dismissing—when it does not completely ignore—Anti-Federalist interpretations. Originalists, like other interpreters, routinely take Federalist statements at face value, rarely if ever considering whether such statements should be discounted as campaign advocacy or weighed against Anti-Federalist advocacy as evidence of original meaning. This focus and credulity is mostly taken for granted and unexplained.  

Scholars who have explicitly addressed the question have offered three arguments for privileging Federalist over Anti-Federalist advocacy. The first is that Federalists won the contest over ratification and their stated views should be treated as controlling for that reason. The second is that Federalist advocacy of limited government constituted a binding promise, on which the ratifying public was entitled to—and did, in fact—rely. The third is that Federalist advocacy must necessarily have persuaded the “marginal ratifiers” whose votes put ratification over the top and whose understandings should therefore be taken as authoritative. Evaluated on their own terms, all three of these arguments have serious and probably fatal flaws. More important, all of them are grounded in some variation of the intentionalist approach that modern originalism has rejected. None is grounded in original public meaning or consistent with public-meaning originalism. 

For a fuller account, see our new article, “Interpreting Ratification,” here.

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