Thursday, October 18, 2018

Evolving into the Fixed Constitution

Guest Blogger

Christina Mulligan

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

If the public’s understanding of the Constitution’s nature was wildly unsettled during ratification, what would that mean for constitutional interpretation today? Jonathan Gienapp explores this possibility in The Second Creation, arguing that the essential character of the U.S. Constitution was initially undetermined. Many of the former colonists (consciously or unconsciously) held preconceptions about how constitutions worked due to their experiences with the largely-unwritten British constitution. Yet, the U.S. Constitution was a different sort of creature, set forth at once in a single, written document. Although American constitutional practice quickly became document-centered, expectations about how the Constitution would function were initially more varied.

Gienapp’s historical point is straightforward, and yet his argument that the Constitution was not initially considered “fixed” is almost difficult to grasp because presumptions of constitutional fixity are so strong today. Not only today’s originalists, but also living constitutionalists, understand the Constitution as “a written, discrete, inert, historically conceived object composed of words, contained on parchment, and enforced by judges.” (p.326) Our values are not our constitution; our norms and historical practice are not our constitution. (While parties certainly cry foul when norms are violated, they usually still easily distinguish between a norm violation and a constitutional one.) The document that we call the Constitution is our constitution. Even for most living constitutionalists, if constitutional law changes over time, it is still generally conceived of doing so because the document that is the Constitution has been or can be reinterpreted or reconceived in light of changed circumstances or values. Practice and expectations alone that are wholly external to the document can’t become the Constitution, no matter how important or universal they become.

Gienapp’s thesis thus raises the striking question of whether originalism would invite Americans to engage in a more British-style constitutional practice in the present. This is an especially curious possibility for present-day American practitioners and scholars, largely because very few are deeply familiar with the functioning of the British constitution in the late 1700s.

There are certainly some tempting responses to the concern that the American constitution might extend beyond the four corners of the written Constitution. For one, the fact that the first Congresses came to rely so heavily on document-based arguments so quickly suggests that most everyone had been committed to constitutional fixity all along, consciously or unconsciously. But that reality doesn’t prevent The Second Creation from calling into focus a veritable “Chevron step zero” of American constitutional interpretation: the question whether we must necessarily situate constitutional inquiries in the written Constitution at all, or whether we may (or must) resort to other modes of analysis that would have been acceptable (or required) under the British constitution.

An originalist might approach this threshold question in the same manner that they would approach a more particular application of the Constitution: by first looking to how the founding-era public would have understood the country’s proposed plan of government. As I’ve argued in Diverse Originalism, originalism needs to consider how the entirety of the founding-era public would have understood the Constitution, even and especially when there was a diversity of views among different demographic populations. If present-day interpreters want to understand what sort of government was created at ratification, they need to understand what the public believed was being ratified. If a sizeable percentage of the public (including, according to Gienapp, James Madison and many other federalists) initially presumed the Constitution would function like the British constitution, then a British-style constitutional system is among the possible candidates for the kind of government the public was asked to approve. Of course, the antifederalists presented another understanding of the government’s essential character — one more text-centric, which has more or less prevailed over time.

Rather than evaluate which perspective was more justified, it may be more useful to consider what it would even mean to take seriously the possibility that America’s Constitution (or constitution) would have the flexibility of Britain’s. Gienapp describes the British constitution as “written compacts, like Magna Carta,” and other “authoritative” texts, “blended seamlessly into a complex, dynamic whole defined as much by custom, history, and constitutional practice.” (p. 22) “The British constitution was fixed and constant, yet because it was inherently customary and discoverable through usage and acquiescence, it was perpetually changing.” (p. 34).

Gienapp’s description of the British constitution describes a system that is changeable but still bound by custom, history, and practice, as well as text. And when we look forward in time from ratification to the Congressional debates about executive branch removal, the Bank of the United States, and the Jay Treaty, we see how America’s custom and practice concerning our own constitution developed to situate constitutional questions within the written Constitution, arguing that even wholly unwritten powers or limitations were implied by the text itself. That reality is not only our custom and practice, but now is also our history. Under the British constitution’s own terms, it can be thought of as having evolved into the American constitutional system.

Entertaining the notion of a British-turned-American system might produce some anxiety among present-day interpreters who are committed to the fixed Constitution. If once the small-c constitution turned into the capital-C Constitution, then perhaps it could change again. But there are two reasons not to worry that America’s early relationship with the British constitution will catalyze unmoored constitutional change.

First, the possibility of future change is, descriptively, no more likely than it would be if the fixed constitutional approach had been absolute from the beginning. Maintaining fidelity to a particular constitutional practice is always work. Polarization, cultural shifts, and even apathy can change a constitution in practice. Regardless of the certainty and legitimacy of its origins, for a government to function as a matter of fact, it also must be accepted as legitimate in the present. As Edmund Burke said of the British constitution, “Our constitution is . . . a choice, not of one day, or one set of people, not a tumultuary and giddy choice, it is a deliberate election of the ages and generations.” (p. 29) Regardless of how any particular constitution was created, fidelity to that constitution is an ongoing choice. If few people choose to be faithful to it, a constitution will mutate or decay. That remains true of the American Constitution, whether it came into being fully formed or matured shortly after ratification.

Second, even though constitutional practice can change, texts have a way of drawing people back to them — at least when they purport to instantiate commitments to important values, such as liberty, equality, and wise governance. As H. Jefferson Powell explained, “Just as in scriptural religion, the most elaborate and established theological system can be challenged by the call ad fontes (‘back to the sources’); so in American constitutional law it is also possible to go back to the text, to challenge what currently is[,] in the name of what once was written.” H. Jefferson Powell, Parchment Matters: A Meditation on the Constitution as Text, 71 Iowa L. Rev. 1427, 1433 (1986). Even Madison eventually agreed that enumerating rights would “impress some degree of respect for them, to establish public opinion in their favor, to rouse the attention of the whole community. . . . Political truths declared in a solemn manner acquire by degrees the character of fundamental maxims of free Government, [especially] as they become incorporated into the national sentiment.” (p. 175-176)

In Gienapp’s epilogue, he writes that it was “a contingent set of practices” which made it possible to imagine the Constitution as a fixed document. “Once it is appreciated that an entirely optional set of norms made this conception of the Constitution, . . . it will cease to make sense to search for any essential set of constitutional practices that could have been hardwired into the Constitution.” (p. 334) Yet, while it is certainly conceivable that British constitutionalism could have prevailed, or some other constitutive practice, the reality that American practice shifted so quickly to arguing with text suggests that each possibility didn’t have an equal chance of success. The draw of the text was simply too powerful to ignore. A fixed Constitution ultimately may not have been absolutely necessary, but it turns out that it was decidedly convenient.

Christina Mulligan is Professor of Law at Brooklyn Law School. You can reach her by e-mail at cmulligan at

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