There has always been an ambiguous relationship between constitutional interpretation and theory, on the one hand, and constitutional and political history, on the other. Originalism, for example, in any of its extant forms, is acutely fixated with history, but it is only a compartmentalized history concerned with public meanings and understandings at a precise moment in time, specifically the era of the American founding, however defined. As Justice Antonin Scalia famously quipped, the Constitution is, “dead, dead, dead.” Proponents of a “living Constitution” have a similarly cramped view of historical development. The past is always potentially dangerous, a threat to democratic legitimacy as a lingering “dead hand.” Only recent history and extant social, political, or economic challenges inform interpretation. Other interpretive modes go even further. Ronald Dworkin, for example, argued that constitutional ambiguity should be resolved by theorizing those ambiguities as normatively moral concepts, a project that is arguably completely ahistorical.

Three new books highlight this complicated relationship between interpretation and history and constitutional interpretation, and each lends important insights to both scholarly endeavors. Kevin Burns reinterprets William Howard Taft’s juridical and political career, arguing that Taft’s avowedly conservative commitment to constitutional textualism actually allowed for progressive change over time. Donald Drakeman traces—and ultimately laments—the origins of modern originalism’s jettisoning of the framers’ intent for a myopic fixation with public meaning and textual exegesis. Like Burns, Peter Charles Hoffer examines Daniel Webster’s project of grappling with what Hoffer calls the “unfinished constitution” in the areas of federalism, law and partisan politics, and tensions between governmental power and individual liberty.

Hoffer and Burns both present lucid and important reassessments of how two important figures in constitutional development not only interpreted the Constitution but also imagined the role played by historical development in affecting their interpretive choices. Hoffer’s account of Daniel Webster situates him as poised between the founding and the second generation of constitutional interpreters. In this sense, Webster, perhaps more than we acknowledge, led his generation in the first attempts to map the terrain of the unanswered questions of the Constitution of 1787.

Hoffer makes compelling—and sometimes even incontrovertible—arguments that Webster’s interpretations in some of the most seminal cases of the day were so well received that Chief Justice John Marshall often quoted him directly in his opinions. Hoffer further argues that these unanswered questions of federalism, law versus politics, and the proper delineation of public and private rights were mapped out by Webster not only in cases like McCulloch v. Maryland, Dartmouth College, Gibbons v. Ogden, and Charles River Bridge but also in his political speeches in the Senate over issues like the Fugitive Slave Act of 1850 and his criticism of Andrew Jackson’s refusal to charter the Second Bank of the United States. Hoffer ultimately puts two important points forward. The first is that Webster and his generation were attempting to answer constitutional ambiguities that will always remain so, not only because historical development will always compel new interpretations of these three areas (and presumably others) but also because they are ultimately unresolvable in and of themselves (pp. 1, 161).

Like Hoffer, Burns turns to a novel historical reconsideration, this time in the form of William Howard Taft. Too often considered a constitutional conservative with an unbending allegiance to a static and unchanging notion of constitutionalism, Burns argues that Taft’s commitments in fact produced many progressive outcomes both in his political capacity as president and in his judicial opinions. This is all the more surprising, he argues, because none other than Justice Antonin Scalia argued that Taft’s opinion in Myers v. United States—which upheld a president’s power to fire an executive branch officer without congressional approval—was a “prime example of the originalist approach to constitutional interpretation” (p. 2).

Burns’s careful history characterizes Taft as what one might call a constitutional progressive. In this sense, Taft recognized the monumental changes and challenges of the Gilded Age and early twentieth century, such as industrialization, political corruption, and labor unrest, that became the subject of progressive reform. Unlike other progressives, like Woodrow Wilson or even Herbert Croly, however, he saw a commitment to textualism and constitutional restraint as the best ways to ensure that progressive reforms were permanent and lasting. In this reading, Taft’s belief in constitutional progressivism was made possible by his belief that the document itself did not “embody either a conservative or a progressive ideology … instead, it empowers the government to enact a variety of policies” (p. 2).

These reevaluations of Taft importantly consider his political and academic roles as well. Burns nicely details his executive branch efforts to create a presidential budget and even his consideration of a cabinet government. After leaving office, Taft became the Kent Professor of Law and Legal History at Yale Law School, where he wrote Our Chief Magistrate, which details novel emergency powers that executives could constitutionally execute.

It is in Taft’s jurisprudential role, however, that Burns’s historical reconsideration is at its most revealing. Although canonical accounts do not paint Taft as a conservative interpreter in the same vein of the extremes established by the Lochner majority, early constitutional historians like Alpheus Mason and Robert McCloskey nevertheless argued that the chief justice and his court “sa[pped] the powers of the national government and weakened the reform movement[s]” of the day (p. 138). Challenging these readings, Burns persuasively argues that Taft rejected both the extreme substantive due process contract rights of Lochner v. New York and the conservative notion of dual sovereignty in United States v. E. C. Knight. In terms of the extent of the national government’s ability to regulate interstate commerce, although Taft never went as far as advocating limitless congressional power of national regulation over interstate commerce, Burns argues that he nevertheless promulgated a “holistic and integrated conceptualization of interstate commerce that encompassed the entire journey of goods in the current of interstate commerce” (p. 141). While still acknowledging older distinctions between manufacture and commerce, he imagined a much larger—and clearly constitutional—role for Congress in interstate commerce regulation, thus rejecting the basis of E. C. Knight. Taft’s justification here is crucial to Burns’s revisionist history, because Taft argued that his understanding of interstate commerce was not an unconstitutional expansion of national power at the expense of the Constitution of 1789; instead, it was simply an increase in an already existing national power to regulate as the economy itself developed and changed over time (p. 144).

Although it is not a detailed historical retelling of a single constitutional interpreter within a discrete period of time, the third book reviewed here, Drakeman’s The Hollow Core of Constitutional Theory: Why We Need the Framers, nevertheless argues for a return to a mode of constitutional interpretation that he argues has a sweeping historical legacy—specifically, the will of the framers (or of lawmakers more generally throughout history) to resolve ambiguous clauses of the Constitution. His argument certainly falls within the originalist camp, but his goal is to convince the interpreter that the will of the lawmaker/founder is the superior interpretive choice. Even if one were to engage, for example, in the extant originalist mode of interpretation—the original public meaning of originalism—Drakeman believes that his preferred interpretive theory will only make those approaches more efficacious.

Drakeman first begins with an arguable historical assertion: “Throughout virtually all Western legal history, when judges have considered the meaning of legal texts, their principal goal has been to identify the will of the lawmaker” (p. vii). This is the “historical core” of constitutional theory on his account. It has only been in the last few decades that interpreters have drifted away from this touchstone.

He then offers several reasons for the drift. One is the rise of theories of a “living Constitution,” best exemplified in the jurisprudence of William Brennan specifically and the decisions of the Warren Court more generally. One could argue that these results-driven, non-interpretivist positions began to germinate after 1937, but it is nonetheless true that they begin to come into full bloom with Warren’s ascent to chief justice. Subsequent constitutional theorists sympathetic to this interpretive mode would begin to put forward systematic critiques of Drakeman’s supposed monolithic, “will of the founder” approach. These are now familiar criticisms, but the most salient is the “summing problem” (see chapter 5). Here any attempt to identify the “will” of any lawmaker is inherently beset with intractable problems. Take, for example, the very nature of the Constitution’s ratification in Art. VII. How can we possibly identify any single objective will from all the participants in all the state ratifying conventions? Outside ratification itself, the summing problem extends similarly to quotidian legislation. There are almost always multiple wills accounted for in multiple sources in the machinations of every bill’s enactment. In addition to the summing problem, there is also the living constitutionalist’s “dead hand of the past” critique that also doubles as an undemocratic caricature.

The response to these and other criticisms, according to Drakeman, provides the real impetus for the abandonment of the older tradition. It comes initially in the 1970s in the critiques of the Warren Court in the writings of Robert Bork and Raoul Berger, but the break is set in stone a decade later in the form of Edwin Meese’s articles, which quickly transform into a move from the intent of the lawmaker to original public meanings of originalism. Interestingly, however, Drakeman spends a good portion of his book critiquing these original public meanings’ efficacy in the same way proponents of a living Constitution attacked his preferred method, including the summing problem and the critique of newer methods employed by original public meaning originalists—specifically the use of corpus linguistics, which are attempts to amass large-scale databases to better identify public meanings more accurately.

Drakeman’s ultimate defense of a return to the will of the lawmaker/founder, however, is quite straightforward, even if not persuasive enough to reject extant originalist approaches. Simply put, he argues that it is almost always possible to identify an ends/means intention by lawmakers. Simply put, the ends/means decision is “what they [the lawmakers] thought they were doing, and why they did it that way” (p. 202). However, it is still not quite clear, even considering his impressive critiques of original public meaning approaches, why Drakeman’s choice is superior to them.

All three books reviewed here are important additions to constitutional theory and interpretation. What makes them especially significant is how they reengage larger swaths of political history in their attempts to elucidate or even reinterpret particular uses of interpretive modes over time. As I suggested at the outset, constitutional theory too often takes a narrow or cramped view with respect to the importance of the development of political history and sometimes even ignores it completely. These works show just how important careful historical analyses are to constitutional theory over time. The dividends are worth the effort.