Richard Reinsch (00:19):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with Donald Drakeman about his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers. Donald Drakeman is distinguished research professor in the program in Constitutional Studies at Notre Dame University, where he also teaches in the law school. He’s the author of a number of publications, some of which I’ve read over the years. Why We Need the Humanities, Church, State, and Original Intent, along with many articles and book chapters. Donald, we’re glad to welcome you to Liberty Law Talk for the first time.

Donald Drakeman (00:52):

It’s a pleasure. Thanks very much.

Richard Reinsch (00:54):

Thinking about this book, I like the title. So we are awash, it seems to me, in a cacophony of constitutional interpretive methods. Originalism itself boasts… I don’t know. Over a half a dozen different schools. We’ve also got the living progressive Constitution, which can be a very moralistic Constitution. It can also be a very pragmatic Constitution, driven by policy concerns, in terms of reaching outcomes. So what’s the hollow core of most of these approaches?

Donald Drakeman (01:26):

I think that the basic problem is that we’re arguing about what the words might’ve meant, what the words should mean, what we’d like the words to mean. And what we’re missing is that, from really the beginning of written laws in the Western legal tradition, the law was the written instrument that was made by a lawmaker. Then, it would have been an emperor. Now, ever since we’ve had legislatures, it’s legislatures. They make the law. And throughout all of that history, really for the better part of 20 centuries, the core of interpretation was trying to discern and apply the will of the lawmaker, or what we usually call the lawmaker’s intention. That’s what Coke said. “Every statute ought to be expounded, according to the intent of them that made it.” Joseph Story even said, “The first and fundamental rule of interpreting legal instruments is to construe them according to the sense of their terms and the intention of the parties.” The intention of the lawmaker was what judges were expected to look for and how they were expected to interpret. And when Justice Scalia said, “Well, Blackstone told us that we should look for the words in their ordinary meaning,” he was right. Blackstone said that. But what he said was, “That’s our best evidence, subject to other evidence, of what we’re really looking for,” which was the will of the legislature by, as Blackstone said, “Exploring his intentions at the time the law was made.”

So it is by looking at the area where a number of leading originalist scholars have said we ought not go, which is the debates that, our record of the actual bargaining process, and see what those individuals thought they were talking about.

So what we’re missing is what we really should have been looking for all these years, which is the intentions of the lawmaker, what the lawmaker was trying to do, why the lawmaker was trying to do that. And we’ve gotten ourselves into two very separate corners of judicial policymaking, say, on one side and a hunt for some sort of dictionary definition on the other.

That was not anchored to what real people were trying to do with the words being used.

Richard Reinsch (03:34):

When I interview most originalists, when I read most legal scholar originalists now, what is described is “Well, there was a time,” say Raoul Berger, Robert Bork, 50 years ago, “of this, ‘Well, we want to know what the intentions of the founders are.'” And we realized that was just impossible, if you really did historical work, that how would you ever know what their intentions were? And they intentions cancel each other and they’re different. And what’s really important is to know what the texts mean at the time and to know how people would have described them and understood them. So the better way of doing originalism is original public meaning. I mean, I know you know all that. But for our listeners. And that’s seen as displacing original intentions. So I mean, is that because primarily, originalism wanted to be academically distinctive? Or is that, in itself, this sort of a methodology of just trying to make it more stable?

Donald Drakeman (04:31):

Well, I think they’re probably a collection of reasons, one of which is that the old version of original intent was often focused on looking at what a small number of prominent framers might’ve said about an issue outside of the debates in the first Congress or the Constitutional Convention. I mean, take, for example, the famous Everson case in church and state law. They go back to Virginia and they’re looking at what James Madison said in a petition he wrote called the “Memorial and Remonstrance “. Or they’re looking at a letter Thomas Jefferson wrote a bunch of years later. And assuming that you’ve got all these framers that thought one thing, and you have a bunch of framers from New England that thought another thing. And there’s no way to figure out how you can blend all that. And so, we’re going to look just at the meaning of the words. And that seems really sensible if there’s only one meaning of the words. And that’s really how I got started in this research is that I’ve been a church-state scholar for a long time.

I decided I would do a very careful analysis of the original public meaning of the words. I mean, there aren’t many words in the Establishment Clause. And what I came out with is that there are at least four equally plausible meanings if we look just at how somebody, somewhere, was using that language at the time. So how do you pick? Which of those public meanings? I’m not arguing. And I think some of the so-called bad old originalism sometimes argue that we ought to pick a meaning that’s different than what the public might have understood. I think, to the contrary, the key here is to look at which of multiple possible public meanings the public actually did understand. And they understood it because they understood that’s what the framers were doing. So the intentionalism that I’m focused on is not the intention of James Madison in particular or any other framer. It is the intent of the body. When they got together to debate the various terms, they had ideas, they had intentions. “I want this for my state. You want that for your state. We disagree.” And then, finally, they vote on something that they all understood did something in particular. And it may not have been what any of them wanted, what they intended to get when they got there. But they knew, at the time when they were voting, what they were voting on and what that meant, what it was supposed to do, what their intention of the whole body as a group. So that’s what we’re looking for here. So we don’t go back and look at James Madison’s or Jefferson’s or James Wilson’s life histories.

And try to discern the meaning from their own personal philosophies. It’s, they hammered out a compromise. And they knew what the compromise was.

Richard Reinsch (07:21):

How do you delineate and understand the contours and nature of that compromise for a legal decision?

Donald Drakeman (07:28):

Well, that’s where the thing that has been excluded from many of the, perhaps most of the original public meaning discussions is the debates in the convention and debates in the First Congress on the Bill of Rights. And it is there where we have the best sense of what the lawmaker, as a group, thought it was doing as a group. And so, we see that James Madison probably disagreed with a number of people in New England about what the word “establishment” meant. But they all knew what the clause was designed to do, which was to prevent the formation of a national church like the Church of England. So it is by looking at the area where a number of leading originalist scholars have said we ought not go, which is the debates that, our record of the actual bargaining process, and see what those individuals thought they were talking about.

Richard Reinsch (08:26):

Okay. But in thinking about what they were talking about? I mean, I guess the overall question of just getting, you call it the summing up, or people call it the summing up problem. I’m fishing for something concrete to think about, in terms of applying to a judicial dispute.

Donald Drakeman (08:42):

So let me pick, instead of the Establishment Clause, the Excise Clause. Because unfortunately, so many of us have notions of what the Establishment Clause meant or ought to have meant, that it’s hard to talk about it without bringing in all those old arguments. So let’s pick the Excise Clause in the tax provision, which is a somewhat more emotionally neutral topic. So it turns out that, in the Excise Tax language is, what is an Excise Tax? Is it a tax on a transaction, like a sales tax? That was one definition. Or basically, any tax that the government might levy on a thing, like something you own. Not something you buy. But just something you happen to have in your house, like your fireplace or your dog or your clock. And there were different regional meanings of the word excise. And we find out actually that people in New England had a completely different view of what excise meant, based on their own statutes and what was collected by the Excise Tax collectors in their own states, from what the people in Virginia thought. And one of the early Supreme Court cases was all about, essentially, whether it would be this New England version, which says it includes taxes on things you own, or whether it was a Virginia version, which is just taxes on things you were buying or selling, a sales tax.

And Justice Patterson, in the 1790s, very early case, by a framer. Patterson was one of the framers. Represented New Jersey. He said, “Look. We’ve got a semantic summing problem here. We’ve got two definitions. And they’re both equally good. The question is, ‘How do we resolve that?'” And the answer he gave was looking at the intention of the Constitutional Convention. And the intention here was to allow broad government taxation with specific limitations that would be called direct taxes, which would have to be proportional. And that was really a concern of the slave-holding states because they did not want to have taxes that would allow the North to tax their ownership of slaves. And so, what he said was, “This is not what I, as a framer, wanted. But it’s what we, as the framers, decided that there would be this broad taxing power, subject to these specific limitations, to protect the Southern interest.” And so, he found the, based on the nature of the bargain, the outcome was what he called, obviously, the intention of the framers. So it’s not a mathematical process, as some have been trying to do with corpus linguistics and so on, to just come up with a number. “How many times did we read this word in 1787?”

That’s a meaning. But it’s a process that says, “We take all of the possible definitions.” And there was more variation then than we might appreciate now, because the regional differences were so distinct. So many had been immigrants from different parts of Europe or different parts of what we now call the UK. And therefore, there were significant semantic differences that we actually only see if we go looking for them, which is the case here of the Excise Clause.

Richard Reinsch (11:58):

So it’s something, I was just thinking about your approach. There’s a problem. There’s something that requires a remedy from, say, in the Constitutional Convention or a legislature. A remedy is proposed, debated, discussed, and a compromise is reached. And I guess it’s like you’re really pointing to, “Well, what’s the compromise?”

Donald Drakeman (12:21):

Absolutely. “What’s the final deal here?”

Richard Reinsch (12:24):

Okay.

Donald Drakeman (12:24):

And, “How do we implement the deal in light of what they were trying to accomplish, not just what the words might be able to mean or what we think policy ought to be.” That’s exactly well said, Richard.

Richard Reinsch (12:35):

Now, many originalists; or maybe just me; from the first time I read Scalia’s Matter of Interpretation, think about legislative history as a grab bag and can tell you all sorts of things. Would legislative history, though, be key to what you’re doing? Or maybe Scalia was just wrong?

Donald Drakeman (12:52):

I think he was overreacting. I think that legislative history had been used badly. The Everson case is a great example where Justice Rutledge, who really drove the discussion of Jefferson and Madison and all the Virginia church-state battles as being the heart of the First Amendment. He later wrote to a friend, “This was really all about my worries about Catholics getting control over the public schools. And we had to stop it.” And the Virginia history was really convenient for that purpose. So he was able to take his preconceived notion of what the clause ought to mean and he wallpapered around it, this veneer of 18th century history. And it made for a good-sounding story. And I think what Justice Scalia, in those kinds of cases, and in statutory interpretation cases, saw, was that people doing essentially bad legislative history, you know? Sort of cheating the history. We’re reaching outcomes that were inconsistent with actually what the bargain was. And he tried to make a clear rule than… And you’re trying to get me to say a clear rule. And I keep saying, “You’ve got to go look for the deal!” Because it’s hard to have a clear rule when you have a bunch of people coming together to haggle over how to solve an important question of public policy. And I think we ought to go look to see how they wrestled with that and what compromises they made. So I think Justice Scalia was just trying to emphasize. And you actually can see, from time to time, he cites the framer’s debates. He found it tough to stick to the strongly-worded advice he gave.

Richard Reinsch (14:30):

Do you find any of the current originalists on the court or other justices using your method or parts of your method in their opinions frequently?

Donald Drakeman (14:41):

Well, one thing we see with the Supreme Court Justices is that they tend to spend less time talking about constitutional theory and more time actually doing it. And I would encourage more theorists to actually interpret and more interpreters to think about theory. This book, to some extent, was trying to bridge that gap. The Supreme Court routinely, from the left and the right? I was going to say in the center. I’m not sure there’s much center left anymore. But from the whole spectrum of the court, in terms of both their judicial politics and their actual political positions, have cited the framers. In fact, the Excise Tax case I talked about was cited again in the Affordable Care Act. Framers get mentioned. That’s been fairly routine. It’s been the realm of theory where a need to try to match a jurisprudential basis for original public meaning has come out. And it’s really drawn a sharp line that says, “We’re only looking for the semantic meaning of the words in context.” And that the most we can look at from the framers is how they used the words as just educated Americans of the time. Not that they were any sort of special…

Had any special track towards the meaning here. And I’m trying to reverse the polarity there and say, “We have to look at what the words could mean.” But when we find out the words could mean more than one thing, then the tiebreaker is what they were really trying to do, which is what interpreters and interpretive theory have said for about 2,000 years.

How do we take the answer to an old question and apply that same answer to a new set of facts? That’s been part of the tradition for a long time. What was new, and what I think originalism is reacting, or even sometimes overreacting to, is the idea that we’re going to take an old question and give it a new answer because the court believes that a new answer is more appropriate to the modern age than the old answer that the lawmaker gave.

Richard Reinsch (16:15):

No. Original public meaning, from what I can tell, in the scholar world, is the most dominant originalist school. You claim it’s an overreaction, though.

Donald Drakeman (16:27):

Yes. I think it doesn’t work in real life. Theory is fine at the level of pure theory. But if you actually are recommending that your theory fit with a real-life application, you need to be able to get a point where your theory and the assumptions in your theory overlap with the way the world really works. And the assumption of original public meaning is that, through looking at word use in dictionaries, we can identify a single best original public meaning. And I think, in practice, that’s not the case in many, but perhaps not all, constitutional provisions. And therefore, we need a way to decide which public meaning is better than which other public meaning. And that’s the role that intention has played for many centuries.

Richard Reinsch (17:20):

On this original public meaning and the search for the words, you have a chapter on their use of corpus linguistics, which the way I understand is, we can put together now technical databases and analyze words and really get systematic about how we think they were used in the time period. That sounds promising to me. Why do you not think that’s promising?

Donald Drakeman (17:43):

There are a lot of technical details in that chapter. And I will try not to give you all of them. The bottom line is that corpus linguistics is like a scientific experiment. It says we can collect data about a phenomenon and that we can analyze that data to tell us true things about that phenomenon. And so, you need to subject it to all of the questions that you subject to any other scientific experiment. “How do you know your data represents the phenomenon you’re talking about?” Turns out, for constitutional purposes, the main corpus that everybody’s looking at right now? Which has been a great effort, by the way. I think it’s a wonderful thing to have. The question is, what do you do with it? But it’s been put together with a collection of just a small handful of the papers of specific founders. So like four or five founders. And a certain number of things like newspapers, which weren’t really like the newspapers of today. They reprinted mostly sermons. If you look at the documents that represent the 10 largest documents in the collection, in terms of words? So if you’re searching for words and you say, “Wow. There are 10 documents that provide a large percentage of the words here.” Then, that’s where you’re going to get a lot of your information about word usage.

And only one of them was written by an American. All the rest were written by people who lived in England. And some were translations of things written in Latin. So is that a representation of the way the American public understood things? I think the answer is probably not. Then, if you say, “Okay. Now we’ve got…” Let’s say we’re going to, forget that problem for a minute. Assume it works. Now, let’s go to the next stage. How do we do it? We’re trying to figure out what excise means. Does it mean this broader definition or the narrower definition? And the typical way people go about that is they find out, in this database, that it’s been used, let’s call it 500 times. And their research assistants, usually law students, then read a snippet of the text around it and make a decision about what the word means in that context. So now, you’re saying that here, we have a word that’s in the Constitution that we have a big disagreement about what it means. And we’re going to take a bunch of law students, who may not have studied 18th century language or literature or history, give them 10, 15, 20 words around that word use, and have them assign a meaning. So basically, the same thing we’re trying to do with the constitution. “What’s it mean here?”

They’re doing 500 times.

Richard Reinsch (20:22):

Yeah. There’s something unreal about the process itself and thinking about how judges in our tradition… I mean, as you note in the book, across the centuries, have approached their craft. I’ve always thought this about corpus linguistics. It’s a craving after certainty that just isn’t there.

Donald Drakeman (20:38):

Yeah, absolutely. And I think, what it tells you, even in cases where the words seem to appear more often to mean one thing and not another thing, it shows you that there are multiple uses in play amongst the public at the time.

And why picking the one that, in this particular database, occurs most rapidly, perhaps because it’s in more sermons or because Thomas Jefferson really liked to use it, seems like just an artificial imposition of order, and as you say, certainty, on something that was much more fluid than that. And I think it’s a recognition that we need to have a tie-breaking mechanism. And I think it’s a useful thing to look at and to examine whether you feel as certain as you ought to, once you look at your method. But then, really, what are you looking for? You’re looking for what a lawmaking body was trying to do.

What they decided, not… I mean, these legislatures and constitutional lawmakers did not just pull words out of a hat and say, “We’ll choose these 10 words now. Let’s go onto the next clause.” They haggled over things that were important and made decisions. And we want to know what those are. And we want to ask judges to apply them to try to achieve the goals that lawmaker was trying to achieve.

Richard Reinsch (22:01):

A question that I have for you? And the best answer I’ve ever had to this was Michael Greve’s book, The Upside-Down Constitution. So when I started learning about originalism? And I’ve got Scalia and I’ve got Robert Bork and I’ve got Raoul Berger, those were early thinkers important to me. But I started thinking. “Well, what did they do before progressivism?” Which seems to be the launching point of originalism. “What did they do in the 19th century? What did Joseph Story do? What did John Marshall do?” I mean, how did they… I mean, these are men who really shaped a Constitution a lot, to put it mildly. Do you see your approach in how they crafted some of these legendary decisions?

Donald Drakeman (22:41):

I mean, absolutely. Interestingly, John Marshall, who we tend to hold up as one of the greats, was working pretty hard to make the court a more powerful political body. And so, in his own opinions, you see the word intention somewhat less. But otherwise, as I said earlier, Story said, “We’re looking for the intentions of the framers.” A law professor writing a commentary; in fact, it was a new edition of Blackstone commentary in the turn of the 20th century; “the method of interpretation employed in the Roman Law is the will of the Prince. And in all free countries, the will of the legislative body.” This is just the way people saw this. They also, by the way, understood that word meanings change over time. Because we now have this divided world between those who see the original meaning as correct and those who see some sort of updated or living meaning as correct.

We’ve lost the nuance that even Justice Scalia and some of his opinions picked up on, where sometimes, you have to update, you have to take into account that technology changes, that our understanding of the world changes. And so, is there a way to do that consistently with what the lawmaker was trying to do? And I really see updating as the good updating and the bad updating. And they’re opposites. The updating that has been part of the tradition for centuries says, “We have a clause. We applied…” Let’s say this law applies to telegraph companies. Now, we have somebody invented the telephone. Does it apply to them? Well, that’s a brand-new set of facts.

How do we take the answer to an old question and apply that same answer to a new set of facts? That’s been part of the tradition for a long time. What was new, and what I think originalism is reacting, or even sometimes overreacting to, is the idea that we’re going to take an old question and give it a new answer because the court believes that a new answer is more appropriate to the modern age than the old answer that the lawmaker gave. And that’s, I think, the line that is crossed when you go from a judge applying the will of the lawmaker to a judge applying the will of the judge. And I have another chapter that talks about the risks inherent in allowing small judicial bodies like Supreme Courts to make policy, which is just, it’s not something they’re good at. They’re good at interpreting laws in light of the intention of the lawmaker. They’ve been doing it for generations. They’re not good at figuring out how to make the world a better place in the future. That’s, for better or worse?

Big, bulky cumbersome, sometimes hard to deal with. Legislative bodies are better at that.

Richard Reinsch (25:36):

Yeah. Well, I like it when they also say… And it’s perhaps good saying Planned Parenthood vs Casey, where they say, to both groups, “You should drop this.”

Donald Drakeman (25:46):

Right.

Richard Reinsch (25:46):

That works really well. “We’ve made a decision here.” A question for you. Within originalism, most originalists say the ratifiers matter. You say the framers matter. What’s the significance of that in constitutional interpretation?

Donald Drakeman (26:03):

So one of the public meaning tricks is to say, “The law wasn’t made into law until the ratifiers ratified it.” And therefore, whatever the framers said or did is irrelevant because it’s what the ratifiers said and did that’s important. And since we don’t really have good records on the ratifiers, and we’ve just decided that the framers aren’t relevant, then all that intention stuff and all the debates and what have you are irrelevant. Which is, I think, a very clever argument. But it misses one of the framer’s great tricks. So the Articles of Confederation were in place when the Constitutional Convention met. And they had a provision on what it took to amend the Articles. And it would require, among other things, the agreement of all the legislatures of all the states. And that looked like it would be cumbersome. And so, the framers came up with this new idea of ratification. One of the framers said, “Who cooked up this idea of ratification? This is new.” And the idea was it could be ratified by conventions, not legislatures, and nine states instead of all the states. And so, it was. And so, it became the Constitution. Now that actually, if it had been part of what the articles had said, then you’d be all right. But it’s not. This was made up by the framers. And the framers, meanwhile, are doing this so that it looks like the ratifiers are really making the constitution. But it’s just a great big Wizard of Oz, “Pay no attention to the framers behind the green curtains.” Because it’s the framers who said it’s going to be law when it’s ratified. Nobody else. And in fact, it was contrary to the law at the time, which was the Articles of Confederation. It’s fascinating. So that’s one answer to that question, which is just, it’s a little too clever to say that it was just the ratifiers that made this into law. And then, secondly? And I think-

Richard Reinsch (28:02):

Could it be both?

Donald Drakeman (28:03):

Well, it is. And that’s where this next piece comes in, which is to say, you can’t have secret meaning of just the framers who were at the convention. Only they really knew what this meant. And the ratifiers didn’t know and the public doesn’t know. But we discover it 200 and some years later. And shazam. This had to be understood by the ratifiers and the public. Because otherwise, the ratifiers and the public wouldn’t know how to obey the law. And public meaning had to be used, even if it was sometimes public meaning that differed from state to state. And besides, there was a framer at every ratifying convention. And there were framers, other than James Madison, who later published his notes, of framers who wrote lengthy discussions of what went on at the Convention. So that what was going on, what the framers were trying to do, was information available to the public and to the ratifiers when ratification was happening. So they, for all we can tell, were on board with what the framers had done and why they had done it and had information to that extent. And then, for the Bill of Rights, where we have a lot of our arguments, those provisions were debated in the 1st Congress. And the House of Representative’s debates were carried in the newspapers. And so, our sources are their sources. And the people at the time saw exactly what we see when we look at them. So I think the idea that well, intentions? “Oh, good.” Because only the framers were huddled together and it was all in secret? It’s just not the case.

But in the Roman era, it was banishment and forfeiture of all their property if they interpreted other than just reading the words of the law. In England, they had this Star Chamber if people interpreted certain laws incorrectly, judges included. And there’s all sorts of judicial jurisdiction, curbing and legislation, to strip jurisdiction from the courts that has been entertained. And whether that will go somewhere is an interesting question. It’s beyond and above the questions in this book. But that’s historically what has happened is, at some point, the other branches of government have just said, “We’re really not going to put up with this anymore. And you should go back to what judges are supposed to be doing.”

Richard Reinsch (29:33):

You think about, so Madison’s notes? One scholar in particular has argued that he padded the score. Well, it wasn’t exactly producing sort of an accurate rendition. But I guess you could say we have a lot of different sources of the convention that you can put it together.

Donald Drakeman (29:51):

And you question the sources. We’ve got Madison, who was very pro-Constitution. And we have a leading anti-federalist, Luther Martin, who wrote a very long discussion of the proceedings of the convention. And he had his own views of what went wrong there. And so, in between all this, you can get the best sense you can at what they were doing. Now sometimes, you’re just not going to know. And if you don’t have evidence from the debates, then you go with the best evidence you have, which is, as Blackstone said, the meaning of the words as they’re ordinarily used. And if you have multiple meetings, then we argue about them. That’s legal history. Back in the day, way back in the early days of the British parliament, judges would get a tough issue of interpretation. They’d go over the legislature and say, “What do you mean?” I can’t do that with the Constitutional Convention. But it shows their view that what they’re trying to do is to accomplish the result that the legislature had in mind, not to take advantage of the language to come up with a good idea.

Richard Reinsch (31:01):

Yeah. I suppose… Well, one question. My understanding is the Committee on Style, which produces a formal rendering of the Constitution to be voted on. They slip terms in. They do things that weren’t exactly apparent, if you follow the length of the debates with certain scholars. How do you deal with that problem?

Donald Drakeman (31:21):

You know, it’s like anything in history. There are sometimes conflicting pieces of historical evidence that lead to somewhat different views of something that happened. If, in fact, those conflicts are strong and there is no particular reason to favor one over the other, other than what I think is the standard version in the law, which is the law says history is, which way makes it better for my client? You just say, as a historian, “Geez. This is unresolvable by looking at that particular evidence.” And that’s fine. If we were less certain about a lot of this stuff, we would probably have better decision-making. We need to be as thoughtful as we can about what we can know about the past and how much authority we give that. But that’s not a license to make things up in the future. It’s just to say, there are limits to our knowledge.

Richard Reinsch (32:14):

I was reading your book. The central problem here is still, whatever originalism you’re in, you’re confronted with various ideologies that just dismiss making intentions or public meaning of the founding a central part of the judicial decision. It might be where we start but it’s not going to be dispositive because of various ideological or policy needs. Overcoming that, it seems to me, ultimately is the major problem, that need to produce the result that certain enlightened members in the judicial class want.

Donald Drakeman (32:50):

I think that’s absolutely right. And that, for better or worse, law schools, for a long time, have started their students off on the case method and have taken students through the common law approach to judicial lawmaking by building case on top of case. And it’s a rare law school that teaches this history of statutory or constitutional interpretation along the lines that I have described in the book. And I think that’s a shame. We have this built-in feeling, for about the last probably 50, 75 years, that the law and the world is there to be shaped by creative judges. And my sense is that we could do; and this is perhaps my political sense, as well as my historical sense; with more of a dose on all sides of the political spectrum of that judges have had something they’ve been good at doing for a long time and it wasn’t setting policy. And a lot of times, policies aren’t particularly well-made by bodies that have to pick one principal over another, which is the way judges tend to go at it. And we should let judges go back to doing what they did for a long time and allow issues of major public import to be resolved by the people’s representatives. And I think we’ve gotten away from that. We’ve tended to assume that the Constitution is really a bit of an empty vessel for us to fill with good ideas, for judges to fill with good ideas. And that leaves interpretation out in left field. It’s an after-the-fact rationale for setting up good policy. I think a lot of policy questions are not solved by the Constitution and therefore, ought not to be solved by judges. But that gets into a whole bunch of issues of interesting jurisprudence that we probably could talk about on another call.

Richard Reinsch (34:50):

Yeah. I agree. Do you see a concern, just thinking about what prompted you to write the book, that a bit of a question in my mind is, are we just going to abandon interpretation at some point? And just formally admit what the court’s doing?

Donald Drakeman (35:06):

There are certainly constitutional theorists these days who say just that. That judges make policy, they should make policy. And the question is just whether they should pretend they’re interpreting or whether they should give just policy reasons for their policies. I think, if they’re going to make policy, they ought to act like policymakers and tell us why they really think this. And not because it’s post-hoc, layered on, constitutional rationalization. And then, from a separation of powers issue. And the rest of us just have to think about whether that’s a good idea or not. Historically, when judges have gotten a bit creative, shall we say, in their interpretations, lawmakers have fought back pretty hard.

Richard Reinsch (35:50):

Ours don’t.

Donald Drakeman (35:52):

Well, yeah. I mean, maybe that’s what the Biden Committee is thinking about. But in the Roman era, it was banishment and forfeiture of all their property if they interpreted other than just reading the words of the law. In England, they had this Star Chamber if people interpreted certain laws incorrectly, judges included. And there’s all sorts of judicial jurisdiction, curbing and legislation, to strip jurisdiction from the courts that has been entertained. And whether that will go somewhere is an interesting question. It’s beyond and above the questions in this book. But that’s historically what has happened is, at some point, the other branches of government have just said, “We’re really not going to put up with this anymore. And you should go back to what judges are supposed to be doing.”

Richard Reinsch (36:45):

Yeah. Donald Drakeman, thank you so much for coming on today to discuss your new book, The Hollow Core of Constitutional Theory. Thank you so much.

Donald Drakeman (36:54):

Thank you. It was my pleasure.

Richard Reinsch (36:57):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

The Writing on the Wall