Balkinization: Fixation and Legitimacy

Fixation and Legitimacy

Gerard N. Magliocca

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

Jonathan Gienapp's book raises important questions about how a constitution gains authority. Most constitutional books address what the Constitution means or how the document should be interpreted. Gienapp instead self-consciously looks at what the Constitution is. In other words, he shows how the debates in Congress from 1789-1796 created the understanding that the Constitution is a complete or a fixed text. As he says (p. 19), "Initial efforts to fix (resolve and construct) an uncertain Constitution unwittingly created a new way of imagining that Constitution as fixed (locked in place). This second constitutional creation was not inevitable, and its consequences were immense."

The principal question that I have after reading The Second Creation is whether Gienapp is correct in saying that what his accounts describes so wonderfully "was not inevitable." I say that because it is hard to see how the Constitution could have acquired the authority required to maintain the Union in the absence of some sense of fixity. The Framers used different techniques to confer legitimacy on the Constitution. George Washington's personal charisma (both at the Constitutional Convention and as the first President) was one component. The use of elected ratification conventions was another. In the end, though, these were probably inadequate given the revolutionary backdrop to 1787.

Incomplete or fluid constitutions are possible only where the nation or some other legitimating institution exists apart from the constitution. Most countries fit this description, either through a monarchy, an established religion, or a common national tradition that can lift a constitution. State constitutions also reflect this understanding. Virginia existed long before a Virginia Constitution. Nobody thinks that the Virginia Constitution is important for legitimating Virginia. As a result, state constitutional interpretation does not display any particular concern for fixity. (One could add that most other nations display little interest in fixity or originalism in their constitutional interpretation.)

The countries left out in the cold are the ones where national identity and constitutional creation occur simultaneously. In the modern era, a revolutionary political party (that led the fight against colonial rule, for example), can serve as the legitimating authority. The United States, though, was created prior to the existence of institutional parties. The Constitution, in this sense, discharged a function that today would be served by a movement such as the African National Congress for South Africa or the Congress Party for India. Whether a text is well-suited to that role is an issue that The Second Creation explores critically, as simple phrases cannot fully capture complex ideas.

Posted 10:00 AM by Gerard N. Magliocca [link]