Wednesday, October 17, 2018

The Second Creation and Its Implications

Guest Blogger

Bernadette Meyler

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

In his fantastic book The Second Creation: Fixing the American Constitution in the Founding Era, Jonathan Gienapp asks us to put aside our received ideas of the U.S. Constitution, hagiography and all, and to imagine what kind of object the Constitution might have been when it was originally created. To preview his answer, it was not the textual grant of powers and rights that has been received within the later United States as well as across the world. Instead, Gienapp suggests, the Constitution as initially drafted was the sketch of a system conceived dynamically and without meticulous linguistic precision. The conception of the Constitution altered significantly and permanently, however, in the decade subsequent to its creation. This occurred, according to Gienapp, largely through congressional engagement with concrete problems that arose under the Constitution and the efforts to sort out the interpretive quandaries that these issues raised.

Gienapp’s chapters delve into many of the core substantive flash points surrounding the Constitution in the late 1780s and 1790s, including whether Congress could constitutionally vest removal of an executive officer in the president, in what way the Constitution should be amended, if Congress’s powers extended to chartering a national bank, and debates surrounding the Jay Treaty. These various controversies implicated the very nature of the Constitution, forcing discussion of questions like the meaning of constitutional silence and whether amendments should be seamlessly incorporated into the constitutional text or appended to the original Constitution. Throughout, the specificity or lack thereof of constitutional language furnished an object of contention.

Hence, early in the book Gienapp notes that some viewed linguistic features as crucial in declaring rights, further observing that the “Anti-Federalists became preoccupied with language’s capacity to regulate power . . . [and] fell back on linguistic precision as the only mechanism that might wall off the dangers invited by vesting the Constitution with the kind of vast discretion that the Federalists’ project necessarily required” (82-83). This might raise the question of why the Bill of Rights, often conceived as a triumph of the Anti-Federalists, is not itself more linguistically precise. Gienapp returns to precisely this point, observing in his discussion of the amendments that became the Bill of Rights that James Madison had included the vaguest of these—the Ninth and Tenth Amendments—“to deliberately weaken the textual additions even further” (195). Despite the Anti-Federalists’ aspirations toward linguistic precision, the Bill of Rights thus was designed in part to undermine certain meaning.  

Madison and his fluctuations over time (recently brought to the fore in Mary Bilder’s magisterial Madison’s Hand) play a crucial role in Gienapp’s story, as the transformations in Madison’s approach to the Constitution largely track the change over the course of the book in how the Constitution is understood. As Gienapp indicates almost halfway through his story, “The Constitution needed fixing, but in addressing that need it might also be fixed, perpetually. The Virginian who had otherwise celebrated the creative constitutional moment was now hinting that it might be limited not substantively but chronologically. The Constitution was to be fleshed out, but Madison was now wondering, how long would this period last?” (162) Only a decade, The Second Creation concludes.

Rendering the Constitution a fixed object occurred in three stages, which Gienapp reviews toward the end of the book. The first involved “conceiving of the Constitution as a linguistic artifact,” and the second entailed “tethering [the Constitution’s] words to the archive of its creation” (p. 289). Finally, the document was linked to “the concept of contingent, willful constitutional authorship” (p. 289). All of these aspects connect deeply with contemporary interpretive debates about the Constitution, but Gienapp leaves these links largely unstated during the course of The Second Creation. This gap invites speculation about some of the book’s implications.

The Second Creation’s interest in fixing and fixation ties into recent debates about the “liquidation” of constitutional meaning. In short, as Will Baude’s forthcoming article “Constitutional Liquidation” illuminates, those espousing a notion of liquidation—itself derived from Madison’s writings—view post-Constitution practice as settling the meaning of terms that might have been underdetermined or ambiguous at the time of ratification. Gienapp’s story of the period following the Constitution’s creation could be seen as a larger kind of liquidation narrative, one dealing not with a particular clause or provision but rather with the Constitution as a whole. Under this account, the Constitution itself was an underdetermined kind of object, which had to be cashed out through the debates in Congress that Gienapp catalogues. So liquidated, it turned out to be a document whose importance lay in its writtenness, rather than in the aspects that those at the Constitutional Convention had initially emphasized. Under this vision, the contingency of how the Constitution became what it is would matter less than the fact that the Constitution turned out to be fixed shortly after the Founding and has been fixed ever since. This redescription would allow Gienapp’s book to be reincorporated into a defense of originalism rather than serving as a critique of it.

Another area of inquiry that pertains to contemporary debates in constitutional interpretation has to do with the relation between constitutional authorship and readership, or even what counts as authorship. While Gienapp observes the turn to assertions of willful constitutional authorship, he also delves into debates about whether the Constitution should be “read as ordinary people would” or according to “lawyers’ . . . expert mediation” (p. 98); he likewise outlines the varying uses to which participants in the debate over the Jay Treaty put the Constitutional Convention and the ratification debates. For contemporary constitutional theorists, the question of whether the Constitution should be read through the lens of its authors or its original readers—the ratifiers—is connected with what legitimates the Constitution in the first instance. The argument of some original meaning originalists who draw on social contract theory is that the Constitution should be understood according to what its language would have conveyed at the time because that sense is what the people would have ratified, rather than any surreptitious meaning inserted by the Constitution’s drafters. A difficulty arises with terms like “habeas corpus” or other words of legal significance, which some might argue would have held only a vague meaning for non-lawyers. Yet texts like justice of the peace manuals and other works aimed to translate legal doctrine to a lay audience cashed out these terms for the ordinary reader, so the dichotomy between legal and non-legal understandings was not as absolute as it might seem. Because of the centrality of legitimacy to constitutional debates about interpretation today, I would be curious to hear Gienapp elaborate in more detail how and whether legitimacy plays into the story that he tells in The Second Creation, especially if it becomes associated with some constitutional actors more than others.    

It is to our benefit, however, that Gienapp has left open these questions about the connection between the history he is telling and its potential normative implications for constitutional theory. The richness of his story and its turns and surprises will furnish many of us with ample material for engagement and deliberation in the years to come. 

Bernadette Meyler is Carl and Sheila Spaeth Professor of Law and Co-Associate Dean for Curriculum at Stanford Law School. You can reach her by e-mail at

Older Posts
Newer Posts