Thursday, June 20, 2019

The Significance of Gienapp’s "Second Creation"

Stephen Griffin

This is a much belated comment on Jonathan Gienapp’s truly marvelous work The Second Creation: Fixing the American Constitution in the Founding Era.  I regret that I couldn’t participate in the Balkinization symposium last fall.  Reading back through Gienapp’s book and the symposium made me think I could usefully add a few points.

Reading through the Balkinization posts one could be forgiven for thinking that Gienapp wrote a book about the relation between the adoption of the Constitution and originalism.  The book may certainly have implications in that quarter.  But that’s not the major import of this analytically precise work that dives deep into the origins of the American constitutional tradition.  A scholarly work like Gienapp’s is long overdue.  I wish that it had existed when I was writing my first book, American Constitutionalism: From Theory to Politics.  True, Gienapp’s material is mostly familiar.  Scholars like Larry Kramer and Sylvia Snowiss have previously advanced ideas that are similar in some ways.  But the angle Gienapp takes and his comprehensive approach to familiar material creates a new conceptual space for approaching how the Constitution came to be understood in the early republic.

There are three important strands to Gienapp’s narrative.

First, in invoking the constituent power of the people to enact a single-document constitution that had the status of supreme law, the founding generation was doing something completely unfamiliar.  I don’t think this point can be emphasized enough and there are still far too many scholars who fail to recognize its significance.  Although the Constitution had the form of a written law, at the same time it could not be easily analogized or reduced to any other kind of legal enactment.  This made the nature of the Constitution inherently problematic, making it difficult to grasp what the Constitution really “was.”  Nonetheless, as I argue in American Constitutionalism, this did not prevent subsequent generations of American lawyers from trying to “legalize” the Constitution by doing what the founding generation tried consciously to avoid – namely, collapsing its status down to that of an “ordinary,” albeit foundational law.  Every time the Constitution’s “essential” character is invoked, for example, in analyses that stress its “writtenness,” (or think about every time you have read “after all, the Constitution is a kind of statute”), we are making the very mistake the founders tried to avoid.

Avoid, that is, until Congress hit the first series of policy disputes in which the Constitution could be arguably implicated.  Here Gienapp throws a sharper than normal light on the constitutionalization of American politics.  The phenomenon is familiar, but again Gienapp’s angle of attack is different.  He discusses the inherent tension that results from on the one hand treating the Constitution as the arena in which governmental action takes place as contrasted with using the Constitution to influence or even dictate the terms of policy debate.  It certainly seems natural to press the Constitution into service to support or condemn policy proposals.  But this can cut against the advantages of having the Constitution serve as a relatively apolitical framework for government.  Gienapp’s narrative forces us to ask the question of whether the concept of a framework Constitution is compatible with its being treated as a political trophy.

Finally, Gienapp shows persuasively that the idea of the fixed Constitution as a textual, “archival” document was itself contingent on a historical process.  So things could have been different.  This is something to keep in mind in a time when the original public meaning approach seems to be encouraging (as Victoria Nourse argued in a recent fascinating lecture she gave at Tulane and elsewhere) an intense textual reductionism – what John Hart Ely called a “clause-bound” approach.  Yet this is exactly what many framers, influential Federalists included, repeatedly warned against when they doubted the utility of written fixity by condemning reliance on “parchment barriers.”  We need to remind ourselves of the relevance of a holistic, structural approach to the Constitution that keeps its purpose and design elements firmly in view.  Such an approach was very much on display during the founding as Gienapp shows and, as Mark Graber demonstrates in his article “Constructing Constitutional Politics,” during Reconstruction as well.

This is by way of saying that in contrast to some of the symposium participants, I see a number of significant similarities between the “older” originalism of original intention and the “newer” originalism that stresses the original meanings of the legal text.  Although an inquiry into intentions could in theory range more widely, both views focus on the text.  Both are centered around what amounts to a rational reconstruction of the past rather than facing the historical messiness of the clash of views at the founding and during Reconstruction.  And in part to deal with this messiness, both inherently involve the exclusion of evidence that historians, at least, (and possibly lawyers too!) would find relevant to assessing what was achieved in both periods through formal constitutional change.  There is also a difference, but it does not necessarily work to the advantage of the original meaning perspective.  It has more recently become clear that the avoidance of “subjectivity” in the original meaning approach means that it can generate interpretations that not only did not occur to anyone during the founding, but arguably could not have occurred.  Yet originalists are presenting this as an advantage of their point of view rather than something that’s deeply problematic from a sound historical perspective.  All of this is pretty telegraphic, but I hope to elaborate on these points in a forthcoming article on Reconstruction and perhaps in some future posts this summer.

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