In The Second Creation: Fixing the American Constitution in the Founding Era, Jonathan Gienapp provides a stunning revision of our founding document’s evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution? With all eyes on the American political landscape this week, we sat down with Gienapp to discuss the history of the Constitution and how we might reimagine it in the future.
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In The Second Creation you tell the story of how, in the decade after ratification, the American Constitution evolved from a document that Americans had thought would be flexible, subject to both formal amendment and informal adjustment through ordinary politics, into one viewed as a stable source of supreme political authority. Can you describe that evolution?
American constitutional imagination transformed in profound ways during the first decade of the Constitution’s existence. The key to understanding why and how is to first grasp that when the Constitution initially appeared in 1787 it was shrouded in uncertainty. Not only was the Constitution’s meaning unclear but, far more significantly, it was unclear what the Constitution itself actually was. It is often assumed that, while Americans have long argued over the Constitution’s meaning, they have always more or less agreed on what the Constitution essentially is: a written text, comprised of seven articles and over four thousand words, that forms the nation’s fundamental law. But this basic description reveals very little about the Constitution’s definitive features, which was well understood at the Founding. At that time, there were no easy answers to a host of basic questions that cut to the Constitution’s core. What kind of object was the Constitution: a text, a system, a framework, or something else entirely? What defined its character: was it akin to other legal instruments or completely novel in kind? Was the Constitution a complete or incomplete instrument? How and by whom was it to be enforced? The Constitution was born in flux. Those leaders who gathered under its auspices beginning in 1789 would not merely carry a well-understood instrument into effect; they would have to answer these open questions about the Constitution’s very nature.
In confronting that uncertainty, American political leaders fought over how to imagine the Constitution—its content, its properties, its character. In the process, they helped give the Constitution shape and definition that it had previously lacked and thus played a foundational role in creating, as much as interpreting, the document.
Over time, by furiously appealing to the Constitution to justify their various political claims, these leaders breathed life into particular ways of conceiving of the Constitution. These leaders began trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. Nothing about the Constitution itself necessitated this outcome. Only by putting an uncertain Constitution to work did early American leaders begin seeing their supreme governing instrument in many of the ways we see it today.
You focus on a series of significant episodes that contributed to the “fixing” of the Constitution: disputes over the removal of executive officers in 1789, the addition of constitutional amendments later that year, Alexander Hamilton’s proposal to charter a national bank in 1791, and the implementation of the controversial Jay Treaty in 1796. What stood out to you about these particular moments and the surrounding debates?
Each of these debates began by focusing on something rather narrow, yet each quickly transcended these horizons and turned on something far broader: the Constitution’s fundamental character itself. Participants rarely intended this to happen. Each time, they realized that appealing to the Constitution to justify a particular position begged deeper, unanswered questions—which soon became the focus of the dispute.
For instance, the debate over chartering a national bank could have merely turned on whether such a financial institution was useful for the young republic. But bank opponents, led by James Madison, contended that the bank was simply unconstitutional—that among its enumerated powers Congress lacked the authority to charter such an institution. Bank supporters countered that the Constitution, in various ways, sanctioned implied powers—including through the so-called “necessary and proper” clause that punctuated the list of Congress’s powers. But, from there, the two sides engaged in an even broader debate, not about the meaning of specific clauses, but about what the Constitution, in the deepest sense, actually necessitated. What did the Constitution require of those serving under its authority? Bank opponents thought the Constitution mandated passive obedience, whereas bank supporters believed that it obligated congressmen to exercise their discretion to handle novel challenges. I was drawn to how this debate (like all those in my story) simultaneously functioned at a high level of abstraction while also turning on something immediate and concrete. This quality allowed the debates to carry profound implications, and to be as much about authoring the Constitution anew as simply carrying it into effect.
How is it that this critical period in American history has been so thoroughly excised from our national narrative, overlooked even by historians of the Constitution and the early Republic?
The story that I tell in my book has been hiding in plain sight. This period has been exhaustively studied. Most know about George Washington’s presidency and the epic struggle between Alexander Hamilton and Thomas Jefferson (and their many followers) for the soul of the young nation. Meanwhile, lots of scholars have studied how the Constitution, once written and ratified, was debated and interpreted. But these histories, no matter their great virtues, either marginalize the Constitution (choosing to focus on partisanship and ideology) or place it front and center but too readily presume that the Constitution at that time bears a close resemblance to the one we know today. These histories have tended to assume that ratification in 1788 signaled a decisive break—that no matter what uncertainty remained, by the end of that year the Constitution existed. The story of creation had come to an end, and the very different story of interpretation had begun.
In their assumption that the Constitution came hardwired with a distinct set of properties that would have naturally presented themselves to anybody trying to make sense of it as of 1788, previous scholars have made it impossible to ever focus on the most crucial question: how did those constitutional properties emerge in the first place and acquire such commanding authority?
In revealing the historical contingency at the root of so many of what’ve come to be understood as the Constitution’s core features, you open the door to reimagining the Constitution even now, in our own time. What might such a reimagining look like?
As Americans contingently reimagined the Constitution, the Constitution unexpectedly acquired new characteristics. Among the most important ideas to be remade in the process was the concept of constitutional fixity. Prior to 1787, Americans had easily believed that constitutions were simultaneously fixed yet changing. There was nothing contradictory about these twin notions. The British constitution that Americans had long known and revered had been built on this logic, and nothing that had happened during the intervening years following Independence had undermined its appeal. But during the decade after ratification, Americans pulled these two constitutional characteristics apart and turned fixity and change into antagonists. Thereafter, the Constitution was either fixed or changing, but not both.
I hope my book shows that nothing about the Constitution itself demands that we think of fixity and change as mutually opposed, and that we’re free to imagine anew what the Constitution’s possibilities might be. We cannot blame the Constitution for our own entirely optional choices.
Finally, what are the implications of your work for today’s predominant modes of constitutional interpretation?
For one, it undercuts many of the central assumptions undergirding constitutional originalism (the prevalent theory that the Constitution must be interpreted today in accordance with its meaning at the time of its inception). All originalist theories presuppose a certain conception of the Constitution—almost always assuming that the Constitution is a distinctively modern legal text—and, in turn, originalism’s champions assume that the Constitution itself requires us to think and talk about it in a particular way. In other words, their arguments about original meaning are built on a particular account of the original Constitution. But, as The Second Creation shows, at its birth the Constitution lacked the kind of definitive properties that originalists have long assumed it must have had. In this regard, there is no original fixed document for us to recover, just a story about how American political leaders sanctioned a novel idea of constitutional fixity.
Importantly, my work does not simply push us in the other direction either, toward originalism’s long-standing opponent: living constitutionalism (whose proponents insist that the Constitution must evolve as American society changes). Since the originalism–living constitutionalism divide is itself built on a decidedly optional way of imagining the Constitution, one that Americans too readily assume is a natural byproduct of the Constitution itself, I hope my work will force people to rethink the very way of seeing the Constitution that makes originalism and its leading competitors intelligible. If we gain a new appreciation of the full history of the Constitution’s creation, we might feel encouraged to move on from our longstanding debates over the best way to interpret the document and reconsider the often-unexamined assumptions upon which such debates are built.
