History Lean: The Reconciliation of Private Property and Representative Government

Abstract

The question of proper interpretation is a constant theme of legal analysis. The problems can arise with ordinary contracts, with statutes and administrative rules, and of course, with constitutions, including our own. Martin Flaherty's examination of three possible theories of constitutional interpretation'-those of Bruce Ackerman, Cass Sunstein, and myself-adds an instructive chapter to the ongoing debate over the proper understanding of our own Constitution. His critique of my work targets two of my writings on property rights and economic liberties-my article, Toward a Revitalization of the Contract Clause,2 and my book Taking-s3-while ignoring other writings in which I make somewhat greater use of historical sources.4 His learned attack sounds a theme familiar to many historians: the unruly complexity of historical experience cannot be accurately or fully captured in a few pet phrases, and it is not possible to do justice to the historical sources by using history to avoid the need for historical inquiry.5 Rather, the historian should read widely in the literature and dig hard at the primary sources in order to make sense of the cross currents of political and social thought that molded the Constitution. His insistence upon this method stands in sharp contrast to my own preferred view of constitutional interpretation, one that lays little stress upon the historical debates that led up to the adoption of the Constitution, and directs far more attention to specific constitutional language and to overall constitutional structure. In taking this position, I have no desire to suppress evidence that is hostile to my position, or to rely on evidence that selectively bolsters that position, some of which is presented