Tuesday, October 30, 2018

The Founding and the Origins of Our Constitutionalism, Part II

Guest Blogger

Jonathan Gienapp

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

II. Fixity and the Inevitability of Our Constitutionalism?

I now turn to constitutional fixity, the concept that lies at the heart of my story. This subject is complex—not least because, as Sandy Levinson appropriately writes, fixity is “chimerical.” So it’s valuable to restate some central points. I argue that Founding-era Americans did not invent the idea of constitutional fixity, they reimagined it. Debates during the decade after ratification brought into focus a new idea of what defined a fixed constitution.

It is essential to grasp this point because, contrary to what is commonly thought, there was nothing new—not in 1796, 1787, or 1776—about thinking that a constitution ought to be fixed. Virtually everybody in the English-speaking world, for over a century and half, had assumed that their constitutions were fixed and that this was a good thing. Common law jurists like Sir Edward Coke had claimed that the English constitution was fixed. So too had leading seventeenth-century Parliamentarians like John Pym and Henry Parker and radical spokesmen who kept their dream alive like Algernon Sidney. Meanwhile, colonial Americans—whose own conception of the British constitution centered on the texts of their colonial charters—readily assumed that they were subject to a fixed constitution. If there was one thing that everybody could agree on, it was the fact that constitutions were fixed. This all might seem counterintuitive. Didn’t Revolutionary Americans invent the idea of a fixed constitution by choosing to write their constitutions down? Wasn’t the customary British constitution obviously unfixed, since it changed through evolving practice? From the perspective of our distinctive understanding of fixity those queries make perfect sense, but therein lies the point—from our perspective. And it is precisely that perspective, which marked such a rupture in the long history of Anglo-American constitutionalism, whose origins I set out to explain.

Before that perspective took shape, an older form of constitutional fixity reigned. And unlike its successor, it was fully compatible with prevalent notions of constitutional change. Most members of the seventeenth- and eighteenth-century English-speaking world—from Matthew Hale and William Blackstone to James Otis and Samuel Adams—assumed that constitutions were fixed but changing. When constitutions changed—due to evolving practices, common law adjudications, or constitutional crises—they did not drift away from fixed principles but more deeply converged on them. Dynamic change produced new constitutional understandings that simultaneously restored ancient constitutional meanings. Counterintuitive to us; obvious to them.

After independence, these habits endured. Americans wrote their new state constitutions, but those instruments naturally replaced the charters that had long centered their constitutional existence, so it seemed intuitive that the deeper constitutional principles those charters had incorporated persisted as well. Much changed between 1776 and 1787—and plenty of it, as I suggest, was revolutionary—but many basic constitutional habits endured. In this regard the federal Constitution was indeed fixed from the beginning—just as the British constitution, the colonial charters, and the state constitutions had been before it—but fixed in a way that we no longer easily recognize, and one that post-ratification debates helped make obsolete.

So what I chart in my book is not the birth of constitutional fixity itself, but the origins of a peculiar brand of fixity that made a previous brand of fixity look like anything but. That new form of constitutional fixity has endured in powerful ways. By stressing the new Constitution’s textual and archival character, and thus by circumscribing it in space and time, post-ratification Americans helped turn fixity and change from allies into antagonists. Ever since, Americans have largely operated in the space made of this opposition, opting to see the Constitution either as static and fixed or as dynamic and changing—as Sandy Levinson celebrates John Marshall for doing in his famous opinion in McCullough v. Maryland. In other words, only from the perspective of a new kind of fixity born in the 1790s did the enduring contest that treats originalism and living constitutionalism as warring alternatives become intelligible.

With this account of fixity in mind, I would modify Mark Graber’s suggestive framework for comprehending when constitutional actors appeal to fixity. In highlighting the diverse purposes of constitutional argument, Graber is identifying something real and important, not only in Abraham Lincoln’s and Thomas Jefferson’s constitutional rhetoric, but in constitutional rhetoric more generally. That said, even if there is a discernible pattern in how people have appealed to what we might call fixity, I think it is crucial to recognize that changes to the idea of fixity have changed how these arguments operate. As Graber correctly notes, it was common in British constitutionalism to claim that opponents were violating key provisions of a fixed constitution. But when those earlier Anglo-Americans turned around and emphasized constitutional open-endedness, they were not understood to be contradicting themselves.

Additionally, in narrowing fixity, post-ratification Americans helped draw new distinctions in the field of constitutional rhetoric. Graber describes the common practice of constitutional practitioners defending their particular interpretation with absolute certainty. But, in our culture, not all of these arguments appeal to constitutional meaning fixed at the Founding. Often, such assertions appeal instead to certain valued features of the status quo and more recent past—precedent, doctrine, custom, or longstanding norms. And whereas in the earlier British or early American state constitutional contexts these appeals would not have seemed distinct in kind, now they very much are. There is far more to the story than what happened during the decade following ratification, but my sense is that reimagining fixity helped remake the field of constitutional rhetoric more broadly. Even if Graber’s framework is valuable, we still need to appreciate that not all forms of constitutional fixity were made equal and that the Founding era significantly altered the practice of appealing to a fixed constitution.

It is also crucial to note that early congressmen made arguments that complicate Graber’s dichotomy. While it was perhaps not surprising that Federalists, since they were trying to legitimize a new constitutional order during ratification, extolled the virtues of a provisional Constitution, it is surprising that many of them were no more certain about the Constitution’s meaning the following year when they debated the removal of executive officers in Congress. Even though the purpose of constitutional argument had changed, numerous advocates of removal nonetheless maintained that the Constitution was silent on the question and that it was their responsibility, as congressmen, to devise a working meaning. No doubt some defenders of removal came to believe that the right reading of Article II necessitated vesting removal in the president alone, but what is remarkable is how many refused to embrace this argument; how many refused to treat the Constitution as a text with fixed meaning. Before a new kind of fixity reigned supreme—when, as Levinson so colorfully puts it, “whirl was king”—these congressmen were adamant that the Constitution had nothing to say about the issue before them. They displayed an “openness” (again drawing on Levinson) that confounds our expectations. Perhaps Graber’s observation that constitutional actors often invoke the rhetoric of constitutional fixity when seeking to legitimize their positions or constrain the actions of their opponents owes as much to my historical account as to the general features of constitutional argument.

Differentiating between different kinds of fixity also helps us think about the inevitability, or strong likelihood, of Americans’ brand of constitutionalism—a theme that both Gerard Magliocca and Christina Mulligan thoughtfully raise. In different ways, each question how contingent the developments I emphasize might actually have been.

Magliocca wonders whether it was not, in fact, inevitable that Americans would have embraced constitutional fixity as they did. Maybe Americans were destined to look to their Founding to legitimize their Constitution. Magliocca makes a good case for why such appeals to fixity were likely unavoidable in the United States. Lacking the sense of shared identity of other nations, Americans needed to bind themselves to their Founding moment. I agree that it was almost certainly inevitable that Americans would have looked to their Founding for authority, but they might have done so armed with an older notion of constitutional fixity that drew a less invidious distinction between past and present. There was nothing new about appealing to the authority of the past, nor doing so in partial, strategic, and flattened ways (as Alison LaCroix correctly reminds us was what Founding-era Americans continued doing). So even if Americans in the 1790s (to answer one of Bernadette Meyler’s questions) did not obsess over the difference between constitutional drafters and ratifiers, importantly they did narrow the scope of their Founding in non-necessary ways. Had post-ratification Americans not circumscribed the Constitution in time and begun treating it as an archival object, appealing to the Founding could have still resembled the more fluid uses of history that had long dominated Anglo-American constitutional practice. Perhaps Magliocca would counter that even this alternative would have been too unstable to legitimate a new nation. But this use of history would have relied on practices that had organized American public debate for decades. So I would still suggest that it is less the act of appealing to a founding than the character of that appeal that matters, because the latter is a function of how one contingently imagines the relationship between history and constitutionalism. As I suggest, the development of a particular way of appealing to history, even though it can now seem straightforward, in the context of the 1780s and 1790s proved novel.

In a similar spirit, Mulligan contends that it is unsurprising that Americans came to treat the Constitution as a text. While it might not have been “absolutely necessary,” she writes, “it turns out that it was decidedly convenient.” In the cauldron of political debate, she notes, there was always a powerful incentive to leverage the text of the Constitution and, indeed, my own accounts of congressional debates illustrate how quickly this practice developed. But much as there are distinct ways of appealing to history in constitutional argument, so too are there distinct ways of appealing to text. While I don’t doubt that Americans would surely have emphasized the Constitution’s text, I do not think that they (and thus we) were destined to imagine constitutional text as they eventually did. Here it is valuable to consider Americans’ pre-Independence experience with charter constitutionalism. Americans’ constitutional experience had always centered on authoritative texts. But in that constitutional world, there were no discontinuities between the text of the charters and what we might think lay beyond them. Text mattered yet didn’t. It was not simply that they believed that the constitution had content beyond its text; they did not care about the boundary separating the two. This thinking informed state constitution-making, persisted under the Articles of Confederation, and remained prevalent up through the Constitutional Convention and beyond. It might have endured indefinitely had Americans not fundamentally rethought the idea of constitutional text. By beginning to draw sharp distinctions between the Constitution’s words and everything else and assuming that constitutional content was made, not merely recorded, by the linguistic form, they generated a new way of thinking about the Constitution that made it intuitive, in Mulligan’s words, to assume that “[t]he document that we call the Constitution is our constitution.” It can be hard for us to see how it could have turned out differently. We instinctively draw a line between the text and what is outside of it—even if we favor the importance of unwritten norms and precedents. But I don’t think there was anything natural about this in 1776, 1787, or 1789 so there did not have to be anything natural about it in 1796 or 1803. Founding-era Americans could have lingered in a constitutional world that assumed that “the constitution” denoted a seamless field of written and unwritten content.

What matters then, for my argument, is not simply that Founding-era Americans came to focus on the Constitution’s text or appeal to its history or talk about it being fixed, but that they did so in novel ways that created new organizing dichotomies. Nothing about the Constitution itself required Americans to draw these new dichotomies—to construct, in LaCroix’s words, that particular “theoretical undercarriage of the machine.” Only practices that were invented, legitimized, and then entrenched in the 1790s made that possible.

All too often we return to the Founding with our own dichotomies in hand, merely assuming, because our socialization has made them so natural to us, that they are essential tools for making sense of early constitutional behavior. We then get to work sorting what is said, seeing if it fits on one side of the dichotomy or the other in hopes of clarifying what our Constitution originally meant. But too often we note what Founding-era Americans said without appreciating that, since it was said in a world free of our dichotomies, the statement carried a different meaning than we would assume. I have tried to draw attention to the various ways in which early Founding-era disputants clung to older ways of thinking about constitutional text, history, and thus fixity to force us to delineate the origins of our constitutionalism rather than assume its inevitable emergence. We are often tempted to think that historical practice was going to converge, one way or another, on our own long-running practices. But I think it is valuable to grasp their contingency to better understand their precise logic and the real alternatives that they displaced.

For this reason, I’m especially pleased that Alison LaCroix underscores what is indeed conspicuously absent from my story: the Supreme Court. Among the most unexpected things that happened following 1789 was, first, the capacious category of constitutionalism was narrowed into what we now call constitutional law, and, in time, the Supreme Court became the dominant agent in constitutional development. We often obsess over the origins of judicial review and ponder whether the Framers anticipated it. Of course they did (at least in some form). What they didn’t anticipate was the role it would play or the importance it would obtain in a remade constitutional landscape—one where constitutionalism described something much narrower than before.

It is often the job of the historian to take what seems essential and unproblematic and reveal how it, like everything else, has a history, not least because doing so is the key to self-understanding. If we cannot defend our constitutional imagination—and the dichotomies, vocabularies, and practices that define it—by simply reassuring ourselves that an external authority (in this case the Constitution) makes us talk, think, and behave that way, then we will have to justify our habits anew. At minimum, it ought to force us to see the Constitution’s creation in new, more dynamic terms, as a process that unfolded over a longer period of time, involved more actors and episodes, and could have turned out in a variety of ways.

It also seems to hold implications for originalism, the subject of my final installment.

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

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