Balkinization: The Invention of the Archival Constitution

The Invention of the Archival Constitution

Guest Blogger

Alison L. LaCroix

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

Among the many achievements of Jonathan Gienapp’s Second Creation is the book’s elegant and decisive dismantling of many tidy just-so stories that constitutional law scholars tend to tell themselves about the period between 1787 and 1796.

Statecrafters are not settling down to the business of implementing the Constitution, passing framework statutes for the federal courts, or congratulating themselves on the creation of newly enshrined principles of judicial review. Operationally significant questions are not only omnipresent, they flare up and quickly assume existential proportions: can the Senate demand a role in removing heads of departments, or is that power constitutionally committed to the president alone? If the president signs a treaty and the Senate ratifies it, can the House of Representatives decline to execute it, or must Congress legislate accordingly? Ought the Constitution be amended – and if so, should those amendments be interleaved among the relevant provisions of the text, or should they be appended to the end of the document? Confusion and discord reign.

As Gienapp illustrates, for these and other foundational questions in the 1790s, there were no right answers waiting to be discovered. Even with the Constitution in hand, the members of the founding generation had to invent solutions. The Constitution was not self executing. Continuous acts of creation were required to ignite the engine that would in turn drive the “machine that would go of itself,” to borrow the title of Michael Kammen’s prizewinning book from 1986.

Indeed, even the theoretical undercarriage of the machine needed to be developed. Did the U.S. Constitution take after its unwritten ancestor, the British constitution, and carry within it the same mystical combination of fixity and perpetual change that ran from Magna Carta of 1215 through the Glorious Revolution of 1688 and beyond? Or was America’s Constitution something different – a sacred text that lived in an archive while setting the fundamental ground rules for the polity? Over the course of the 1790s, Gienapp argues, the Constitution became the latter: “an authoritative text circumscribed in historical time” (4). But, as The Second Creation convincingly demonstrates, such a conception did not inhere in the document itself. On the contrary, the 1790s witnessed another act of creation that was as powerful as the drafting and ratification of the 1780s: the constitution of the Constitution. The interpretive modes and the ontological theory that came to govern what we now term “constitutional thought” were themselves artifacts of debates that dominated the immediate post-founding era.

Perhaps the greatest shock that Gienapp presents to the conventional story of early U.S. constitutional history steals upon the reader quietly, in the form of an absence. It is the non-presence of the Supreme Court. Chief Justice John Jay appears – not in his scarlet judicial robes, but as the negotiator of the controversial treaty with Great Britain that brings the House into collision with the Senate and President Washington. John Marshall, the lanky fourth chief justice, slopes into frame for only two brief cameos: a foreshadowing reference to Marbury v. Madison (1803) and one statement in Virginia’s ratifying convention in 1788. Personnel aside, the Court’s jurisdiction under Article III is discussed over the course of a few pages. Many Federalist essays are analyzed, but not Federalist No. 78, in which Alexander Hamilton described the “federal judicature” as “an intermediate body between the people and the legislature” that could “keep the latter within the limits assigned to their authority.”

Gienapp’s narrative does not focus on these canonical elements of constitutional law scholarship because he does not regard them as elements of the particular founding period that is the object of his study. The focus of The Second Creation is the “great contest over rival practices of constitutional justification, a concerted effort – waged from all directions – to show how and why the Constitution permitted particular kinds of reading and usages and not others” (8-9). Although such efforts continued into the nineteenth century, Gienapp’s aim is to illuminate not only the process of constitutional meaning-making, but also the “fixing” of the Constitution. “Fixing,” as Gienapp uses the term – following the usage of his eighteenth-century sources – is “to resolve the uncertainties latent in an amorphous and unknown system.” In so doing, however, the generation of the 1790s also became habituated to a second meaning of “fixing”: viz., viewing the Constitution as a stable system that was “fixed rigidly in place” (4).

In the immediate post-ratification period, constitutional debates roiled within virtually every American governmental institution: the state legislatures; the House of Representatives; the Senate; and the presidency. As Gienapp demonstrates, debates that were deeply political and increasingly partisan must also be understood as being about how constitutional argument would work. On issues as varied as the removal of executive officers, the process of adding amendments, the establishment of a national bank, and the implementation of the Jay Treaty, statecrafters argued not only about the merits of the question but also about what evidence counted.

Arguments about whether the document was a complete text or a set of draft agreements to be worked out and amended over time also took shape during this period. Gienapp frames this question as a choice between “archival” and “indeterminate” understandings of the Constitution. “[W]here is your Constitution?” Gienapp recounts Maryland congressman Michael Jenifer Stone asking Madison during the House debate over the bank in 1791. “Is it among the archives?” Gienapp’s answer is yes: increasingly during the 1790s, Madison turned to the history of the Constitution’s creation to support his own policy arguments and to fend off his opponents’ efforts to portray the system as incomplete. In Gienapp’s account, Madison’s “constitutional exegesis converged with historical excavation” (233).

Always, Madison was at the center of these debates. And therefore Congress – not the Court – is at the center of Gienapp’s story of how American constitutionalism began to be made in these years. In contrast to the period after 1800, the locus of constitutional discussion in the 1790s was the floor of the House, and to a lesser degree the Senate. In this crucial decade, Marshall was not the great chief justice but a practicing lawyer, a Federalist stalwart in Virginia’s state government, and an envoy to France in the XYZ Affair. The Court was not the arbiter of federalism and the separation of powers that it would become in the nineteenth century.

Marshall, like Madison, occasionally spoke in terms of the archival Constitution. But in both cases, one might resist Gienapp’s characterization of these efforts as genuinely historical. Instead, they appear more as creative uses of the historical record – more akin to a lawyer’s than a historian’s use of history. Both Madison and Marshall tended to recast as historical fact what was in reality their own, reconstructed memory. As Gienapp observes, Madison was known to have kept notes of the debates in the Constitutional Convention of 1787, and he frequently adverted to these records during the controversies of the 1790s. Moreover, as Mary Sarah Bilder has demonstrated, and as Gienapp acknowledges, Madison repeatedly revisited and revised these notes throughout his lifetime, and the version that was posthumously published in 1840 had undergone decades of edits and emendations.

After Marshall became chief justice in 1801, he too cited history from the drafting and ratification period before to bolster his opinions. The effect was twofold: to cloak the Court with authoritative knowledge about the Constitution’s meaning at the time that it was created, and to distance the commercial republic of the early nineteenth century from its shaky confederal origins. In his 1819 opinion in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States and invalidating Maryland’s attempt to tax the Bank, Marshall portrayed ratification as both authoritative and remote. In response to Maryland’s insistence that the Union was a compact among the states, Marshall noted that the Constitution had been ratified not by the state legislatures, but by the people, “who acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention.” Marshall did not specifically mention that he himself had been present in the Virginia ratifying convention thirty-one years earlier, as a delegate from Henrico County. But his audience would have known.

As Gienapp demonstrates, the martialing of founding-era evidence to support latter-day constitutional arguments is an old practice. But it is not an original practice. Like so many other elements of the American constitutional system, it was invented.

Alison L. LaCroix is Robert Newton Reid Professor of Law and an associate member of the department of history at the University of Chicago.

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