Kevin Gutzman's retort to
Austin Bramwell:
They Really Meant It.
Bramwell notes that I insist on Jefferson’s standard of constitutionalism: that a constitution be interpreted “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.” He then provides extensive quotations from Alexander Hamilton and James Madison to the effect that one must not, as Bramwell puts it, “look into the intention of those who wrote it.”
Apparently Bramwell does not know the difference between the Philadelphia Convention that wrote the Constitution and the state conventions that ratified it. I agree with Hamilton and Madison that one should not ask what the Philadelphia Convention intended, even as I agree with Madison and Jefferson that one should ask what the ratification conventions understood. The ratification conventions did not write the Constitution, but they were the ones who gave it effect. They were, in a constitutional sense, the legislators whose understanding counts. Their understanding was shaped by what the Constitution’s friends said of it while it was being considered for ratification, as Jefferson said.
If, as Bramwell implied in his first piece, he had read my books, he would know that. If, as Bramwell implied in his first piece, he had read my on-line articles, he would know that. If he had simply read the Constitution itself, he would know that.
He makes the same mistake when, under “It is unclear whose expectations one should consult,” he says, “We can start with the handful of men who actually drafted the Constitution’s provisions.” Why would we do that? Not for any reason I know. They had no power to make law. One might as well interpret my will by asking not what I meant, but what my lawyer meant. Perhaps Bramwell sets up this straw man simply so that he can knock it down, but it seems more likely that he has confused the men who wrote the Constitution (whose opinions Hamilton and Madison called irrelevant) with those who ratified it (to whose understanding Madison, Jefferson, and I said one must look).
