Monday, October 22, 2018

Fixation as a Constitutional Rhetoric

Mark Graber

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

Abraham Lincoln’s speeches and writings frequently confirm but sometimes confound the central thesis of Jonathan Gienapp’s magisterial The Second Creation.  Gienapp in that superb study of constitutional language and linguistics details how Americans during the years immediately before, during and immediately after they ratified the Constitution of the United States came to regard constitutions as texts with fixed meanings.  Lincoln before assuming the presidency consistently referred to such a constitution when asserting that the American framers intended to put slavery in “the course of ultimate extinction” and plainly vested Congress with the power to ban human bondage in American territories.  Upon assuming the presidency, Lincoln rejected constitutional fixity,  treating the Constitution as incomplete and mutable.  His first inaugural declared, “But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate, nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the territories? The Constitution does not expressly say. Must Congress protect slavery in the territories? The Constitution does not expressly say.

Lincoln’s presidential rejection of constitutional fixation stemmed from a change in the purpose of his constitutional arguments rather than an abandonment of his previous understanding concerning the nature of that constitution.  Lincoln’s constitutional arguments before assuming the presidency made assertions about constitutional policy and practice, about how the Constitution of the United States should implemented in particular circumstances.   Such arguments from the 1790s to the present, Gienapp lovingly details, treat the Constitution as a text with a fixed meaning.  Lincoln’s first inaugural made arguments about constitutional authority.  Such arguments routinely assume that the framers did not resolve all constitutional questions in advance, that some entity or combination of entities must be empowered to settle at least temporarily good faith disputes over constitutional meaning.

Arguments over how the Constitution should be implemented in particular circumstances are prone to treat constitutions as texts with fixed meanings.  The point of such arguments is to justify political action or constrain the political action of others.  Authority comes from settled law rather than from personal beliefs about good policy or justice.  Presidents claim they are empowered by the past to engage in military hostilities without a congressional declaration of war.  Supreme Court justices insist the persons responsible for the Constitution empowered them to strike down bans on abortion or handguns.  Persons may base political action on beliefs about good policy or justice in a regime committed to rule by law only when authorized by the past to take such actions.

Constitutional arguments with different purposes are far less prone to treat the Constitution as a text with a fixed meaning.  Historians commonly claim that the framers did not resolve certain disputes.  Social scientists routinely point out how personal beliefs about good policy and justice influence particular constitutional decisions and the path of constitutional development.  Framers designing a constitution must decide between provisions likely capable of only one interpretation that will become part of what Sandy Levinson calls the Constitution of Settlement or provisions whose interpretation will be disputed that will become part of what Sandy Levinson calls the Constitution of Conversation.  Arguments over how constitutional disputes should be settled assume the probability that the words of the Constitution, no matter how much excavation is done to determine their meaning, do not in practice settle all constitutional controversies.

The Second Creation partly details a natural shift in the purpose of constitutional argumentation as well as a greater tendency for Americans to perceive the Constitution of the United States as a text with a fixed meaning.  During the drafting and ratification debates, many central questions concerned whether Americans wanted a constitution whose central provisions had clear fixed meanings.  Federalists preferred to fashion a Constitution of Conversation containing multiple provisions whose import would continually be worked out through a well-structured constitutional politics.  Anti-Federalists preferred a Constitution of Settlement containing only provisions capable of one interpretation.  When explaining why a Constitution of Conversation was superior to a Constitution of Settlement, Federalists unsurprisingly rejected claims that the Constitution of the United States should be a text with fixed meanings.  Once the drafting and ratification debates were over, constitutional argument shifted to implementing the various provisions of the Constitution.  During this debate, Federalists unsurprisingly began treating the Constitution as a text with fixed meanings because persons wishing to claim constitutional authority or constrain rival political actors routinely insist that their claims are rooted in a Constitution framed in the past that, interpreted properly, authorize or forbid such matters as presidential decisions to cashier cabinet members without congressional consent, legislative decisions to establishment a national bank, and congressional involvement in implementing treaties.  Federalists did not necessarily change their beliefs about constitutionalism as much as adjust to a different form of constitutional argument with different constitutional purposes

The English constitutional practice Americans inherited exhibited a similar structure.  Whether the English Constitution had a fixed meaning depended on the purpose of the constitutional argument being made.  Gienapp is right to note the many seventeenth and eighteenth century commentaries do not describe the English constitution as a text with a fixed meaning.  During the upheavals of the seventeenth century, however, prominent royal and parliamentary authorities debating political actions done in the name of the constitution were as committed to constitutional fixation as members of Congress debating the national bank and the Jay Treaty.  Edward Coke and his Parliamentary allies spoke of Magna Carta as provided fixed limits on regal power to tax, imprison and detain.  James I and Charles I were just as adamant that the law of the land placed fixed limits on parliamentary capacity to constrain royal prerogative.

Gienapp’s rich history of American constitutional rhetoric demonstrates that changes in the purposes of constitutional argument cannot explain various attitudes towards the nature of constitutions.  He details how state constitutional arguments before the Constitution of the United States was ratified were far less inclined to treat constitutions as texts with fixed meaning than constitutional arguments after ratification.  Development is clearly taking place, and not just the nature change in the purposes of constitutional argumentation as the focus of constitutional argument shifts from constitutional design to constitutional action.  For this reason, as well as the stunning rich and sophisticated treatment of constitutional argument, The Second Creation belongs which such works as Rakove, Original Meanings in the constitutional canon.

Distinguishing between the purposes of constitutional argument is nevertheless important to the study of American constitutional development.  Lincoln, the English experience and the last fifteen years of the eighteenth century in the United States suggest that what people are doing when they make constitutional arguments matters.  The fixation thesis is far more prevalent when persons make arguments about implementing the Constitution or at times when most constitutional arguments are about implementing the Constitution than when persons make arguments that describe the Constitution, are concerned with constitution design or focus on constitutional authority.  We acknowledge the Constitution of Conversation when describing actual practice, when deciding whether to use general phrases in constitutional texts and when determining who will settle, at least temporarily, a particular constitutional dispute.  When actually engaged in arguments about the meaning of the Constitution of Conversation, we speak as if we are discussing the Constitution of Settlement. 

Lincoln, the English experience and American constitutional politics during and immediately after ratification suggest that constitutions, written constitutions in particular, foster fixation rhetoric, but that fixation is a rhetoric rather than an actual description.  Legal and political rhetoric almost always present as clear what are in fact difficult political choices.  Few participants in the culture wars admit that any moral or legal unclarity exists on such questions as whether women ought to have a right to terminate pregnancies or conservative Christians ought to have a right not to bake wedding cakes for same-sex couples.  That fixation on these matters is rhetoric rather than reality becomes clear only when the purpose of the constitutional or political conversation changes.  Faculty routinely vote with enthusiasm for job candidates whose positions they describe in law review articles as unreasonable.  Most partisans recognize the right of the rival coalitions to enact their constitutional vision into law if they have gained legitimate control of governing institutions.

Gienapp may end his study too early,  Five years after the Jay Treat debate, Thomas Jefferson anticipated Lincoln when acknowledging how the meaning of the Constitution is subject to politics and not fixed in advance.  Jefferson’s first inaugural declared, “During the contest of opinion through which we have passed the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”  Like Lincoln, Jefferson as president did claim authority solely on the ground that his principles were fixed in 1789.  Rather, Jefferson’s and Lincoln’s first inaugurals recognized that not all constitutional issues are settled during the first creation, that some mechanism is necessary for at least temporarily resolving what remains unsettled, and that the possibility exists that such settlements will eventually become unsettled.  Having made those points in their first inaugurals, both Jefferson and Lincoln frequently returned to those constitutional arguments whose purposes require reference to constitutions as texts with fixed meanings. 

The problem with the constitutional rhetoric of fixation has little to do with the interpretive struggles between originalists of all stripes, living constitutionalists and those who claim to practice both simultaneously.  Legal confidence is a feature of legal practice.  We teach our law students to express with unwavering certainty that the Constitution compels the justices to strike down bans on abortion or handguns, just as we train them to assert with unwavering confidence that justice demands a guilty verdict in any criminal case they prosecute.  The danger occurs only, in the absence of a Lincoln or a Jefferson, citizens take that rhetoric seriously and actually regard their political and legal rivals as usurpers rather than persons engaged in good faith debate over how to interpret a constitution that does not actually provide fixed answers to all constitutional questions.

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