Vol. 10 No. 2 (February 2000) pp. 155-157.

NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGINAL INTENT by Joseph M. Lynch. Ithaca and London: Cornell University Press, 1999. 315 pp. Cloth $42.50.

Reviewed by Joseph R. Reisert, Department of Government, Colby College.

Despite the barrage of arguments directed against it by normative constitutional theorists, the jurisprudence of original intent remains as vital a topic of intellectual inquiry as ever, thanks to the current conservative majority on the Supreme Court. In recent years, the Court's majority has turned increasingly to the FEDERALIST and other indicia of the framers' intentions in order to justify its decisions, particularly those, like LOPEZ and PRINTZ v. U. S. (1997) that have imposed limits on the power of the national government

Given the Court's current interest in the original understanding of the Constitution, the question naturally arises: What importance did the framers of the Constitution themselves attach to their own recollections of what was said at Philadelphia and in the subsequent state ratifying conventions? Joseph M. Lynch's NEGOTIATING THE CONSTITUTION seeks to answer this question by examining all of the constitutional controversies that raged within and without the Congress during the presidencies of George Washington and John Adams. He aims particularly to discover how much weight was then "accorded to framers' intention and statements during ratification, including those in THE FEDERALIST, concerning the meaning of the Constitution" (p. 2). Of course, the terrain Lynch now maps in detail has hardly gone uncharted before now. Fifteen years ago, H. Jefferson Powell's influential article, "The Original Understanding of Original Intent" (1985), advanced the historical claim that the framers rejected originalism. However, Lynch's book examines the wide range of relevant historical materials far more systematically than
Powell's article-or any article could do.

The bulk of NEGOTIATING THE CONSTITUTION is devoted to a narrative history of every constitutional controversy to have exercised the nation during the first six Congresses; however, Lynch actually begins his tale with the convention in Philadelphia and concludes with a brief epilogue that recounts subsequent constitutional developments in summary fashion. Although the broad contours of the history will be familiar to readers of the LAW AND POLITICS BOOK REVIEW --the rise and fall of the Federalists, the emergence and ultimate triumph of the Republicans -- Lynch's careful attention to the host of constitutional arguments raised in controversies both great and small reveals an interesting story. What he finds may disappoint those inclined to idolize the framers but should come as no great surprise to readers familiar with the ordinary workings of partisan politics. First, he finds that "policy goals, not fidelity to past position, most often influenced the

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construction placed on the Constitution in discussion of the scope of federal power or, within the federal government, of the scope of executive power" (p. 6). Second, he notes that those same "goals also determined the use-or deprecation of the use-made of a framer's recollections, of essays in THE FEDERALIST, or of the reports of the proceedings of the state conventions" (p. 6).

Lynch's account of the Philadelphia convention draws attention to the role played by state and regional interest in the negotiations and stresses that the final document did not wholly reflect any one individual or section's view, but rather embodied a series of interconnected compromises. James Madison's initial proposal for broad national powers was linked to his plan for representation, which would have allocated seats in both houses of the national legislature in proportion to population. He favored extensive national powers as long as he was confident that Virginia and the south would predominate in the national legislature. Conversely, northerners generally opposed sweeping national powers as long as a government dominated by the South would exercise them. After the convention accepted the Great
Compromise -- equal state representation in the Senate, representation by population in the House -- northern and southern positions reversed. In view of the conflict, Lynch concludes that the Necessary and Proper Clause, together with the "general welfare" provision of the Spending Clause, embodied "an essential compromise" (p. 25). The wording and meaning were left deliberately ambiguous so that both the northern, commercial proponents and the southern, agrarian opponents of expansive national powers could claim the victory and later say that theirs was the true original understanding.

Lynch's contention that the Necessary and Proper Clause did not so much settle the scope of national powers as defer to the future a debate about their scope is supported by the frequency with which the same individuals argued for a narrow or broad interpretation of national power, depending upon the interests at stake in the particular case. Although Lynch occasionally seems to be trying too hard to convict his subjects of inconsistency, the cumulative account he compiles is devastating. No one - with the possible exception of George Washington -- is found to hold consistently to one interpretation of the Constitution. Madison appears to have been less inconsistent than most, generally cleaving to the limited conception of national power he embraced after the defeat of his plan for representation,
but he too is shown to have advanced the opposite view on some occasions when either national or sectional interest demanded it.

On the issue of how much weight to accord the framers' recollections of the Philadelphia convention and their subsequent statements in the ratification debates, however, Madison's about-face was much more dramatic. Arguing in the First Congress against the constitutionality of the first Bank of the United States, Madison made specific reference to the votes in the Philadelphia convention against including a power to charter national corporations among the enumerated powers of Congress. He noted further that the Virginia ratifying convention and many other state conventions had approved the Constitution based on the understanding that the Necessary and Proper Clause granted Congress the right to exercise only incidental, not sweeping, powers. In subsequent debates he and the Republicans

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grounded their opposition to the Federalists' expansive interpretation of national powers in their, and his, recollections of the conventions. In the Fourth Congress, however, Madison reversed himself. He maintained, despite the evidence from the conventions to the contrary, that House legislative action was required on a duly signed and ratified treaty before it could take effect. Washington decisively repudiated Madison's position, in large part on the grounds that the issue had in his view been settled at the convention. Madison's reply -- central to Powell's classic article --argues powerfully against having recourse either to an individual framer's
possibly faulty recollections or to the incomplete records of the conventions. Lynch reminds us, however, that the incident ended in political defeat for the Republicans and a measure of embarrassment for Madison.

Lynch advances a parallel argument about the inconsistencies of Hamilton and the Federalists, but his case against them is less carefully documented than his account of Madison's career of constitutional argumentation. Although he insists that Madison is the "protagonist" not the "hero" of his work (p. 7), Lynch's narrative decidedly flags when the great Virginian is offstage. In light of contemporary arguments about the appropriate scope of national power, the relatively lesser attention given to Hamilton is particularly disappointing, however. If indeed the conflict between Madison and Hamilton amounted to a choice between a limited national
government and a "sweeping," or limitless national authority, and if their conflicting constructions of the Constitution were grounded primarily in political advantage and sectional interest, then it would be tempting to conclude-as Lynch apparently invites us to do-that the U. S. v. LOPEZ (1995) Court's scruples about the scope of the commerce power are wholly misplaced. But if the conflict between Madison and Hamilton amounted instead to a choice between a narrowly constrained national government and a more expansive, but still limited, national authority-as Hamilton often claimed-then things would look rather better for today's conservative majority than Lynch suggests.

Aside from wishing that he had spent more time on Hamilton, I found Lynch's history to be highly informative and, for the most part, deeply engaging. Anyone interested in the constitutional controversies of the early Republic or in the details of James Madison's career in Congress would do well to read NEGOTIATING THE CONSTITUTION.

REFERENCES

H. Jefferson Powell. 1985. "The Original Understanding of Original Intent."
HARVARD LAW REVIEW 98: 885-948.

PRINTZ v. UNITED STATES 521 U.S. 898 (1997).

UNITED STATES v. LOPEZ 514 U.S. 549 (1995).