It is becoming considerably easier to find and organize the documents that have survived from the period of the adoption of our Constitution by electronic searches into digital archives. Research that once took years to accomplish can be pulled together in hours, sometimes even minutes. "Originalism," for better or worse, is said to have become the prevailing approach in constitutional interpretation. (1) If originalism is going to be based on something more than historical myths and fantasies, then historical claims need to be validated by a return to the surviving sources. The digital archives are just now becoming large enough to allow exploitation of the technological advantages of digital searches into the founding period. Lawyers have used digital searches into the cases, statutes, and regulations for years, but the surviving 1787-1788 sources are just now becoming available online. Digital access to these sources allows constitutional scholars to satisfy Karl Llewellyn's exhortation to "'see it fresh,' 'see it clean' and 'come back to make sure."' (2)
This note is an interim report on how the digital revolution is affecting the history of the period in which the Constitution was drafted and adopted. I do not forecast the full impact of the new search technology on constitutional history.
This note assumes that valid constitutional history is relevant for constitutional law, without seriously defending the assumption. My own attitude toward use of history in law is asymmetrical: we should use the wisdom of the Founders as inspiration when they are right, without being bound when they were wrong. The Founders were mercantilist in economics, anti-Catholic, anti-Semitic, sexist and racist in social attitudes, and often inept in valid statistical inferences. When they were wrong, as they often were, we should ignore them. What to do with accurate history, however, is an issue separable from the issue of making sure that the history is accurate.
I. SPOT SEARCHES FOR WORDS.
One of the great conveniences of digital searches is that one can marshal evidence on important historical arguments in a very short period of time. One might win some food fights. I had been arguing with Professor Bruce Ackerman of Yale Law School by e-mail not long ago. My position was that the most important issue in the debate on the ratification of the Constitution was whether the new federal government would have the power to lay "direct" or dry-land taxes. The Anti-Federalists generally conceded that the new general government could have the power to lay a tax on imports, called the "impost," but no Anti-Federalist would concede that the federal government could lay internal taxes, except by requisitions upon the state governments. Professor Ackerman disagreed, arguing that the most important issue in the ratification debate involved the Bill of Rights, or the enforcement of the British peace treaty, but not taxation.
The University of Virginia had just announced that they had put the 39 volumes of John C. Fitzpatrick's Writings of George Washington online, (3) and I decided to play. I entered a search for "direct tax" and the first hit was a letter from George Washington to Thomas Jefferson: "For myself, ... there are scarcely any of the [Anti-Federalists'] amendments ... to which I have much objection, except that which goes to the prevention of direct taxation; and that, I presume, will be more strenuously advocated and insisted upon ... than any other." (4) Washington went on to say that he had expected that the new government would "do justice to the public creditors and retrieve the National character. But if no means are to be employed but requisitions, that expectation was vain and we may as well recur to the old Confederation." (5) George Washington was telling Jefferson that the Constitution was about getting the war debts paid and that giving the new federal government power over direct, internal taxes was the key contested issue. I had not seen this letter before in the secondary literature.
Washington's letter is not the only evidence that "direct tax" was the most important issue in the ratification debate, (6) but Washington was the defining core of the constitutional movement, and therefore an important witness. To find that letter before the University of Virginia put Washington's letters on line, I would have had to have been a Washington specialist who had read all thirty-nine volumes of Fitzpatrick's Writings of George Washington, (7) and I would have needed either a photographic memory or a very big shoebox to organize what I knew. It might have taken me days to find it even if I knew what I was looking for. As it was, it took me maybe thirty seconds to search for "direct tax" to find that very nice letter.
In the movie, Annie Hall, the Woody Allen character is waiting to get into a movie theater as a pretentious guy in front of him pontificates about what he teaches about Marshall McLuhan. (8) Woody disagrees with the guy and then pulls Marshall McLuhan in person from behind a post. And McLuhan agrees with Woody: "You--you know nothing of my work" McLuhan tells the pretentious guy. "You mean my whole fallacy is wrong. How you ever got to teach a course [in anything] is totally amazing. (9) Doing digital searches is like that. If I had been able to summons George Washington as a witness, I could not have written any better testimony for my side of the debate with Bruce Ackerman than this letter.
Washington's letter is also important evidence on current issues in constitutional history. It is not uncommon to see the Constitution described as primarily a document to restrain government and safeguard individual liberties. My book, Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution, (10) argues that the Constitution was first a tax document, a pro-taxation document adopted to collect revenue to pay the Revolutionary War debts. The Constitution created a new three-part government on the federal level and transferred supremacy or sovereignty to the new government away from the states. There is not much that is pro-state in the historical Constitution. Although I am not sure the gem of a Washington letter ended all dispute about the meaning of the historical Constitution, searches are helpful in collecting a lot of evidence.
II. THE STATE OF THE DIGITAL REVOLUTION
A web search for a word or phrase is terrific in pulling in a large and diffuse catch. In minutes, a web search can collect quotes that used to take years to collect. Two generations …