Monday, October 29, 2018

The Founding and the Origins of Our Constitutionalism, Part I

Guest Blogger

Jonathan Gienapp

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

No author, let alone a first-time author, could ask for anything more than this rich and rewarding symposium on my new book, The Second Creation: Fixing the American Constitution in the Founding Era. Each of the commentators—all distinguished constitutional scholars—have charitably entered into the spirit of what I was trying to do in the project and have thoughtfully engaged with what I had to say. I am gratified that so many of them think the book makes important contributions to our understanding of the early Constitution. And I am just as appreciative of the substantive ways in which they have complicated or challenged aspects of my argument. My deepest thanks to all of them for launching such an illuminating conversation.

I am especially pleased that these commentators have drawn out the implications of my arguments for modern debates over constitutional theory and interpretation. This comes as no surprise since the symposium, by design, pulled together legal scholars working in these particular areas. As a historian, I set out principally to write a history of the early Constitution, not a work of constitutional theory. And while I certainly wrote the book in the hope that the former would hold important implications for the latter, because my primary focus was on constructing a coherent and compelling interpretation of the American Founding, I did not explicitly or extensively foreground my understanding of the book’s connections to modern constitutional debates. Because, as Bernadette Meyler notes, I leave many of these “links largely unstated,” I assumed that others might draw different conclusions from me or productively extend my findings in ways I had not anticipated. Many of the commentators have done just that, so in addition to offering a chance to respond to specific challenges raised in the reviews, this response also affords me the opportunity to speak more concretely about what I take to be the book’s implications for debates over constitutional interpretation.

The commentaries cover a lot of ground, but there are a handful of topics that dominate the discussion. Accordingly, I will focus my remarks on a few important issues: the study of constitutional language, the meaning of constitutional fixity and the necessity of our brand of constitutionalism, and originalism. I am not surprised that readers kept returning to these themes, as they were the issues I spent the most time struggling to understand. Elaborating on them is the best way to push the conversation forward. I will consider each of these three issues in distinct installments.

I. Constitutional Arguments vs. Motivations

In his otherwise enthusiastic and charitable discussion of my book, John Mikhail criticizes me for focusing too much on constitutional language and argument and neglecting “the complex interplay of economic interests, regional alignments, and political power.” No doubt the debates at the heart of my book were conducted by often deeply interested political actors engaged in fierce contests over power, wealth, and regional influence. It would be impossible to claim that they were not motivated, at least some of the time, by something other than the right interpretation of the Constitution. Precisely because I not only appreciated the likely attraction of Mikhail’s criticism but very much believe that the factors he emphasizes are of great consequence, I went to great pains in the Introduction to explain why I focus on language and argument and what I think study of them is able to illustrate. My discussion there, which builds on prior work, articulates my longstanding belief that the enduring division—between the study of what are often termed “ideas” and “interests”—that has partitioned historians of the Founding since at least Charles Beard is a false and pernicious dichotomy. Neither ideas nor interests can be considered prior to the other nor can either be fully reduced to the other’s terms. Which of the two we focus on in our historical investigations ultimately hinges, I think, on the kinds of questions we are trying to answer. Depending on what we are trying to explain, interest-based motivations might play an enormous, even determinative role or they might tell us very little. I focus on constitutional argument because of the particular dynamics I was trying to illuminate. Thus, while I think Mikhail makes a strong case for how regional and economic interest created and sustained constitutional coalitions at the Founding, I do not think that those particular factors help us understand my chief focus: why constitutional argument (or at least certain constitutional arguments) developed in one precise way and not another. In this regard, I take us to be talking past, not against, one another.

Mikhail is certainly right that the issue of implied powers is pivotal to the story I chart and, indeed, much of what I claim to know about the subject is informed by his own marvelous scholarship. I think he is right that if we are trying to determine why certain people defended implied powers then we need to understand the political, economic, or regional interests that no doubt motivated them. In deciphering those complex intentions, we would surely have to understand the paramount importance of slavery, western lands, northern finance, and their perceived relationship to national power in people’s political and ideological calculations. But suppose we are asking a different question—not whether or why a particular political actor championed implied powers but how they went about doing so and what the consequences of those particular choices were for how people more talked about the Constitution? Economic and regional interests cannot, on their own, explain the particular arguments that somebody made in defense of implied powers, why those arguments did or did not gain purchase in a particular moment, or—far more important still—how those arguments took on lives of their own far beyond the immediate debate in which they were generated.

Consider the debate over chartering a national bank in 1791. Interested northerners bent on carrying Alexander Hamilton’s recommendation into effect could have defended the national government’s right to incorporate a bank on many distinct grounds, each of which implied something slightly different about the Constitution’s fundamental properties and character. They could have claimed that the Constitution was necessarily unfinished and that its unfinished state implied that Congress enjoyed wide discretionary authority to fill in its gaps and carry out its deeper purposes. Alternatively, they could have claimed that the Constitution, by setting up a national government, automatically gave the federal government certain distinctively national powers independent of anything else the document actually said. Different still, they could have claimed that some particular provision in the Constitution, such as the “necessary and proper” clause, fairly licensed this power. Or, finally, they could have claimed that the Constitution was seemingly unclear but that historical evidence from the Constitutional Convention or ratification debates helped clarify the Constitution’s true meaning on the subject. All of these claims were available and any one of them could have been used to bolster implied powers. Yet each one disclosed a distinct image of the Constitution and the kind of object that it was. Some arguments treated the Constitution as an unfinished system while others treated it as a more or less finished text; some arguments thought it was important to start and finish with the Constitution’s words while others suggested that this was a categorical mistake; some arguments assumed that the Constitution’s mysteries could be sorted out by better understanding the nature of national governance while others encouraged excavating the history of its creation.

What mattered to me, in the particular story I was trying to tell, was why some of these arguments acquired momentum and began crowding out viable alternatives—how, as Sandy Levinson puts it, a particular “constitutional language-game emerged out of the intense political conflicts of the 1790s.” Only some of the arguments that the bank debate generated transcended the narrow parameters of that dispute and became compelling, forceful premises for completely different kinds of arguments in unrelated contexts. Only some of them, for instance, were picked up, revised, and extended in the much different debate over treaty-making a few years later. Since different arguments implied different things about what the Constitution was and how one might credibly extract content from it, it mattered to my story which arguments became authoritative and which available alternatives withered. And I do not think that even the most finely-wrought portrait of interest-based political action can explain how some arguments were acquiring force and thus how some ways of thinking about the Constitution were becoming increasingly instinctive and natural. I have no doubt—as I otherwise imply in the book—why the bank vote in the House broke down largely along regional lines. And I am perfectly willing to accept that these motivations explain why Theodore Sedgwick, Elias Boudinot, and John Vining endorsed implied powers and why James Madison and James Jackson were wary of them. (We never want to be too reductive, but Levinson’s invocation of “motivated reasoning” certainly seems relevant here.) That said, I do not think that simply being for or against implied powers explains why any of these individuals, among all the available choices, settled on the precise argumentative strategies that they did or why some justifications endured and others did not.

In this regard, even though he suggests as much in his commentary, I do not think that another chapter or even section could have accommodated Mikhail’s request. I think we would need another book entirely, one that asks different questions about early constitutional development and aims to accomplish different things. It would be a book no less important or instructive and one that I very much hope Mikhail himself writes. Not only is he best suited for the task—with his deep expertise in the relevant constitutional history and his evident skill at identifying and tracing constitutional-political coalitions and interests—but the field would benefit from a deeper understanding of how certain conceptions of federal implied powers were strengthened or weakened within the dynamics of this ferocious culture war over slavery, economic development, and regional dominance. But that book, illuminating as it no doubt would be, would not easily expose or chart the precise constitutional transformation that is central to my narrative. Founding-era Americans could have debated implied powers for all of the interested reasons that they did without fundamentally transforming their constitutionalism. Why they cared about implied powers, then, will not explain why debates over implied powers and related constitutional matters ultimately remade constitutional thinking in the precise and consequential manner in which they did. And that transformation—the result not the cause of debate—is ultimately what my book tries to elucidate. It also explains my choice of debates. Mikhail fairly asks why I fail to cover the explosive 1790 congressional debate over slavery petitions. It was not simply because I needed limit myself (important though that is) nor because that debate was unimportant (the opposite is true). Because I was not writing a general history of early constitutional and political debate, but instead a history of how a peculiar brand of constitutional fixity was invented and entrenched, I focused on the particular debates that, in my judgment, did the most to effect that specific transformation.

In the next installment, I will turn directly to the idea of constitutional fixity itself.

Jonathan Gienapp is Assistant Professor of History at Stanford University. You can reach him by e-mail at jgienapp at

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