Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
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Corey Brettschneider corey_brettschneider at brown.edu
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Abbe Gluck abbe.gluck at yale.edu
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Jonathan Gienapp's new book, The Second Creation, retells the story of the first decade of the U.S. Constitution through the prism of explaining changes in what people thought a constitution was and how they argued about what the U.S. Constitution meant. To this end, Gienapp provides a sort of greatest hits of the Founding, as he takes us through the Philadelphia Convention, the state ratification debates, the congressional debates over the Bill of Rights, the debate over the President's power to remove cabinet officers, and the debate over the Jay Treaty. It is in the last two chapters on the Jay Treaty that book especially shines. Gienapp ends the book with a recapitulation of how the Constitution became understood as a fixed document made from words, and created at a particular moment in time.
In this review I focus on how Gienapp's historical argument affects contemporary originalist theory.
I. Does The Second Creation Challenge Originalist Theory?
Gienapp begins the book with the ambitious promise that he will discuss the question of the Constitution's ontology. He asserts that how the founding generation thought of the Constitution was very different from our contemporary expectations, and that the nature of the Constitution was in flux throughout its early years. These assertions might seem to portend a history that would completely upend contemporary originalist theory. But by the time one finishes the book, one reaches a more measured conclusion. Whether Gienapp intended it or not, there is little he says in the book that should give pause to many contemporary originalists or contemporary originalist theories.
How can this be? One might think that the book strikes at the very heart of the New Originalism's "fixation thesis"-- the claim that the Constitution is a text whose meaning is fixed at the time of its adoption. Gienapp ably shows that during and immediately following the Philadelphia Convention, this was not universally assumed. Rather, many people continued to think of the Constitution in terms more reminiscent of the British Constitution: a collection of precedents, customs, conventions, statutes and treaties of various types created over long periods of time. The British model of a constitution was simultaneously fixed and dynamic. It perpetually evolved but it always remained stable and unchanging. Like the Argonauts' famous boat, each of its components might be replaced over time, but it was always the same British constitution.
This model of constitutions and constitutionalism envisioned a constitution as a flexible system of governance, in which particular texts-- for example, Magna Carta or the Bill of Rights-- were a bit like ingredients in a larger pudding. It followed that obsessive focus on textual argument or the parsing of individual texts was misplaced, for the constitution as a system was far more than these various texts. Under the right conditions, the correct reading of the constitution could be at variance with the literal language of one or more of these texts. Gienapp uses the example of the Virgina 1782 Case of the Prisoners (Commonwealth v. Caton) as an example of this kind of reasoning.
Nevertheless, Gienapp also shows us how this British conception of a constitution was gradually displaced over the course of a little less than a decade following the Philadelphia Convention through a series of debates and controversies. He shows how, at each step along the way, the participants were driven by their own arguments and strategic considerations to think of the Constitution not as a system but as a text, whose meaning was fixed at the moment of its adoption. It was a text, moreover, on which dueling politicians found it convenient to bestow an increasing degree of reverence and even sacredness. In the book's final two chapters, Gienapp shows that by the debate over the Jay Treaty, both sides of the debate had more or less accepted this set of assumptions. Moreover, they made fairly standard arguments from text, structure, purpose, and intention. Indeed, Gienapp points out, the contemporary fascination with pouring through the archives of debates of the Constitution's framing and ratification in quest of the original understanding or the original meaning can be traced to the early debates over presidential power to remove cabinet officials and the Jay Treaty.
Should any of this bother a contemporary originalist? Probably not. From the standpoint of most contemporary originalists, if the participants in the founding generation converged on the fixation thesis by 1796, that should be good enough for us today. Originalist theory claims that we should consider the original meaning of the text to be fixed at the time of adoption. To be sure, this claim presumes a particular vision of what a constitution is and how it operates and, as Gienapp explains, this vision was not itself fixed until a decade after adoption. But it is not necessary that the theory of constitutionalism be fixed at the time of adoption for originalists to claim that under the correct theory of interpretation, the proper focus is the original meaning at the time of adoption.
But doesn't the fact that it took some time for people to converge on these assumptions and practices undermine the idea that the meaning of the Constitution is fixed at the magic moment of adoption? Not really, and for reasons one expects that Gienapp himself would readily agree to. The nature of the Constitution is not necessarily determined by what people thought they had created at the precise moment of drafting or ratification. After all, we often do not fully understand our own actions in the moment we perform them or the nature of institutions as we act within them. These understandings often only come later on after reflection and subsequent experience. In like fashion, the founding generation's assumptions about the nature of the Constitution in the heat of the moment might only be a partial guide to what they had actually created. Their second, third, fourth, and fifth thoughts, developed over the course of working with the document in its first decade, might be a safer guide to the Constitution's nature and appropriate interpretation. If, within a short space of time, they came to understand that they had produced a Constitution in the form of a text, whose meaning was fixed at the time of adoption, why should contemporary originalists disagree with them?
To be sure, if originalism also requires us to follow and adopt the beliefs and intentions the founding generation prossessed, at the moment of adoption, about the nature of constitutions and constitutional interpretation, then Gienapp's work should give originalists pause. But originalism, as it has evolved from the 1970s and 1980s, now focuses less on original intentions and beliefs and more on the original meanings of the legal text that was produced. And Gienapp shows that within a decade of the beginning of America's constitutional culture, the participants converged on a conception that approached this view, even if it was not the same in all respects as our contemporary version.
Nevertheless, originalist practice often diverges from originalist theory. Many judges, politicians, and scholars who profess to be originalists are especially interested in the original understandings and political beliefs of the founders because they regard the founders as paragons of political wisdom or culture heroes. Gienapp's work should give these originalists pause because it suggests that the founders' vision of consititutions and constitutionalism differed from that of contemporary Americans, including contemporary originalists. It is a reminder that the past truly is a foreign country.
This historical corrective is worthwhile, moreover, because there is genuine value in recognizing that there is more than one way to think about a constitution, including the American Constitution. In particular, we can--and we should--think about constitutions as systems rather than as texts, and therefore focus less obsessively about texts and canons of construction and more about political structures and incentives. We can--and we should--also understand constitutions-as-systems as perpetually unfinished and in a state of becoming over time. In fact, we have a lot to learn from the founding generation's assumptions about political constitutions in understanding the growth and development of the modern state, a state whose contours and operations cannot be read off of the text of the 1787 Constitution, even as amended.
II. The Second Creation and Original Legal Methods Originalism
Gienapp's book might have important critical lessons, however, for original methods originalists. Original methods originalism argues that we should use the same interpretive methods that people used at the time of adoption, because those methods are part of the "law of interpretation" that applies to constitutions, or, more controversially, because these methods are part of the original meaning of the constitutional text and are incorporated by reference.
Original methods originalism is based on the assumption that there was a general consensus among well-trained lawyers about how to interpret the Constitution at the time it was adopted. This assumption, Gienapp explains, is not grounded in historical fact. Like many other historians of the founding, Gienapp points out that there was little agreement about what kind of legal text the Constitution was, and so there was little agreement about which set of interpretative principles applied to it.
In contrast to Gienapp, John McGinnis and Michael Rappaport's theory of original methods originalism argues that we should employ original methods because the people who framed and ratified the Constitution agreed or assumed that lawyers would apply a well-understood set of original legal methods to interpret the Constitution. Hence, McGinnis and Rappaport argue, these original legal methods were fixed into the text at the time of its adoption-- indeed, they are as much part of the text as its grammar and language. And because the text-plus-original legal methods garnered supermajority support, it is likely to produce the best consequences over time, centuries later.
Gienapp's book challenges these aspects of McGinnis and Rappaport's theory. There was no consensus on methods. Indeed, there was no consensus that the Constitution was a legal document in the modern sense we understand it today, as opposed to a document that formed part of a larger political system, more like the British Constitution. There was also no consensus that interpretation would be given over to lawyers who would apply a well-settled group of original legal methods to interpret the text. There was no consensus that these methods were inextricably part of the Constitution's meaning. Therefore there was no supermajority support for original legal methods and no supermajority support for a Constitution interpreted according to them. According to Gienapp then, McGinnis and Rappaport's theoretical claims about why we should follow original legal methods are unsupported by the history.
Will Baude and Stephen Sachs take a different approach. They argue that originalism is and has been our law from the founding. We should therefore apply (1) the Constitutional text; (2) the methods for interpreting the Constitution as they existed at the founding; and (3) any changes in interpretive methods that were themselves authorized by the original methods. Their vision of original methods is recursive. If a current interpretation can be traced back to original methods or to a chain of legitimate change from those methods, it is consistent with originalism.
Gienapp's book also complicates Baude and Sachs' version of original legal methods, but in a different way. The problem is that the moment of adoption does not occur at the same time as the period in which legal methods for interpretation are being formulated. The latter occurs over a process of a decade or more, and there is a period in which methods for constitutional interpretation are being worked out and affixed to the Constitution-as-text.
The text and methods for understanding and interpreting the text do not have a common starting point. Instead of all roads leading back to the text and a well-demarcated set of original methods, all roads will at best lead back to the text and the first decade or so of debates.
Moreover, no one seems to have given any thought to how to move from one set of methods to a new set. That is, there does not seem to have been a theory of legitimate change in interpretive methods. Instead, people made whatever arguments they believed would be persuasive to others. These methods became part of the practice if other participants (1) were persuaded by the arguments; (2) thought them sufficiently important to treat as serious objections and answered them; or (3) responded in kind with similar kinds of arguments. Gienapp shows that this happened when participants began to make arguments about what went on during the Philadelphia Convention and arguments about the views expressed during the state ratification debates. As H. Jefferson Powell has pointed out, these kinds of arguments were not generally thought appropriate in the British tradition, which eschewed reference to legislative history. Yet when one side made these arguments in the 1790s, the other side eventually treated them as serious claims that needed to be answered, and, moreover, began to use similar arguments themselves.
If that is how constitutional argument evolved during this early period, then the methods that people use to interpret the Constitution today could also change through a process of rhetorical evolution. We should not pace Baude and Sachs, expect to discover a relatively self-conscious set of norms that tell us how to change interpretive methods and when those changes are or are not legitimate. Instead, if we follow the example of the first decade of practice, what matters when people make new kinds of arguments is (1) whether other participants accept these arguments; (2) think them sufficiently serious and important to rebut, or (3) respond to them using similar methods. Instead of an well-articulated "law of interpretation," we have an evolutionary practice of legal rhetoric.
III. A Historicist Argument for Traditional Legal Methods
With these caveats, nevertheless, one might still argue for the use of original legal methods of a certain kind. The argument, however, would not be based on McGinnis and Rappaport's story about supermajoritarian consent, It would not be based on the idea that original methods are baked into the meaning of the document. And it would not be based on Baude and Sachs' idea of a common starting point for the text and for the methods used to interpret the text and to change the methods for interpreting the text. The justification, instead, would be far more historicist and pragmatic.
The argument would go something like this: There is a long tradition of using a set of common law tools for interpreting texts that was ported over to the interpretation of the Constitution within a decade of its adoption. That tradition of common law construction continues to this day and contemporary interpreters today should work within that tradition (which may, like all traditions, have evolved somewhat over time).
Nothing in Gienapp's book undermines that claim. Quite the contrary, Gienapp shows that the participants began to use famiilar methods of textual exegesis, including appeals to purpose and intention fairly early on in the Constitution's history. Thus, within a decade of adoption, the tradition of applying common law exegesis to the American Constitution, using the familiar lawyer's toolkit, had begun.
It is important, however to recognize that this is an argument from traditional practice, not an argument from the original meaning of the text, or an argument from supermajoritarian consent, much less an argument from the nature of interpretation itself.
This justification for original methods is both hermeneutic and historicist: A text like the Constitution is always embedded in a set of assumptions about how to understand and read it, even if those assumptions themselves change over time. We should immerse ourselves in this tradition of readings and rereadings when we engage in interpretation today.
A good analogy would be Talmudic exegesis. There is a tradition of how to read scripture and how to derive rulings from previous materials in the tradition that was developed long after the relevant texts were finished. To interpret within this tradition means working with its toolkit of permissible moves. We should apply the interpretive methods that grew up around the text, rather than those from another tradition. Where the two traditions differ, we should no more read the Constitution according to Talmudic rules of exegesis than we should read the Torah according to the rules of twenty-first-century American constitutional practice.
This argument, to be sure, sheds a different light on the fixation thesis characteristic of contemporary original meaning originalism. The historicist claim would be that this thesis, too, is a feature of a living interpretive tradition rather than a necessary assertion about interpretation per se that would have to apply everywhere, at every time, to every constitution. It applies to the American Constitution because of the history of a particular set of rhetorical practices organized around American law and American constitutions, but it need not apply to other constitutions around the world. Americans-- or at least originalists-- argue for the fixation thesis because of a historical practice of reading the Constitution, one that might have been quite different if, as Gienapp suggests, the British model of constitutionalism had prevailed.
For over a decade now I have argued that American originalism and living consitutionalism are two sides of a single coin. Here is yet another aspect to that claim. The theory of originalism-- or more correctly, the many sparring theories of originalism--are the products of a historical tradition of Americans reading their Constitution and arguing about what it means. Part of the American constitutional tradition--which is a dialectical tradition of arguments and counter-arguments--is an evolving dispute over the appropriate forms of constitutional interpretation and argument. The different originalist schools of thought are participants in that living tradition, as are their opponents in the nonoriginalist camp.