Academic journal article
By Johnson, Calvin H.
Constitutional Commentary , Vol. 25, No. 1
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. …