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.