E-mail:
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Review of Gienapp's "The Second Creation" in Constitutional Commentary
John Mikhail
A revised and extended version of my Balkinization symposium
review of Jonathan Gienapp’s stimulating book, “The Second Creation,” is now posted to SSRN.The review is forthcoming in Constitutional
Commentary.Here is the abstract:
The Second Creation by Jonathan
Gienapp is a marvelous study of the earliest debates over constitutional
language, meaning, and interpretation. In virtually every aspect, the book is
brilliantly conceived, meticulously researched, and masterfully executed. This
essay agrees with Gienapp’s key insight that, in many respects, the
Constitution was obscure, unfinished, and uncertain in 1789, and we can learn a
great deal by paying closer attention to how constitutional debates actually
unfolded in the first years after its adoption. A close encounter with that
history reveals that constitutional meanings were ambiguous, unstable, and “up
for grabs” right from the start. Nonetheless, the essay challenges Gienapp’s
thesis to some extent by examining the earliest congressional debates over
implied powers and offering a different interpretation of these events than he
does, which focuses less on issues of language, meaning, and ontology, and more
on the complex interplay of economic interests, regional alignments, and
political power. By setting aside the dizzying swirl of semantics and
considering how members of Congress actually voted on the removal debate,
amendments, the bank bill, and other early controversies, one can identify some
remarkably consistent through lines that render the entire sequence of events,
and the talking points of politicians, less inchoate and more intelligible. As
with so much else that occurred in the founding era, two key factors explaining
what transpired are land and slavery.