(coauthored by David S. Schwartz)
Anti-Federalist advocacy during the ratification debates has been sorely neglected in the applied originalist literature on the Constitution’s original public meaning. This is a major methodological flaw with important–and counterintuitive–consequences for our understanding of federal power today.
Under public-meaning originalism, it is the objective communicative content of the Constitution that is binding on contemporary interpreters. That communicative content is not determined by the subjective understandings, purposes, intentions, or extra-textual promises of the Federalists who supported the Constitution. It is determined by the semantic, or conventional, meaning of the Constitution’s words and phrases, as “contextually enriched” by widespread background assumptions of the day. The broad readings of federal power espoused by Anti-Federalists are every bit as probative of this communicative content as the narrow readings of federal power proffered by the Federalists. Political victors hold no monopoly on the public meaning of language.
There is more. During the ratification debates, Anti-Federalists interpretations of the scope of national power were probably more candid than Federalist interpretations. Anti-Federalists were also remarkably clear-eyed in their identification of the Constitution’s nationalist features, even in the face of Federalist obfuscation. Indeed, the Constitution described in their attacks bears a much closer resemblance to the Constitution discussed inside the Philadelphia Convention than does the Constitution described in Federalist advocacy. All of this makes Anti-Federalist advocacy significantly more probative of the Constitution’s original public meaning than has generally been recognized.
This might seem like an attempt to rehabilitate Anti-Federalist skepticism of federal power as an important input in originalist interpretation. In fact, the opposite is true. Anti-Federalists did strongly oppose and fear a strong national government with broad legislative powers to address all national problems. But that is exactly what they read the Constitution to create. This is far and away the most important contribution Anti-Federalists made to our understanding of the Constitution’s original public meaning. For a fuller account, see our new paper, “Interpreting Ratification” here.