The 2D Creation Too Its Implications

Bernadette Meyler

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

In his fantastic mass The Second Creation: Fixing the American Constitution inwards the Founding Era, Jonathan Gienapp asks us to lay aside our received ideas of the U.S. of A. Constitution, hagiography too all, too to imagine what sort of object the Constitution mightiness select been when it was originally created. To preview his answer, it was non the textual grant of powers too rights that has been received inside the after U.S.A. every bit good every bit across the world. Instead, Gienapp suggests, the Constitution every bit initially drafted was the sketch of a organisation conceived dynamically too without meticulous linguistic precision. The project design of the Constitution altered significantly too permanently, however, inwards the decade subsequent to its creation. This occurred, according to Gienapp, largely through congressional engagement alongside concrete problems that arose nether the Constitution too the efforts to sort out the interpretive quandaries that these issues raised.

Gienapp’s chapters delve into many of the heart noun flash points surrounding the Constitution inwards the belatedly 1780s too 1790s, including whether Congress could constitutionally vest removal of an executive officeholder inwards the president, inwards what means the Constitution should live amended, if Congress’s powers extended to chartering a national bank, too debates surrounding the Jay Treaty. These diverse controversies implicated the really nature of the Constitution, forcing tidings of questions similar the pregnant of constitutional quiet too whether amendments should live seamlessly incorporated into the constitutional text or appended to the master copy Constitution. Throughout, the specificity or lack thereof of constitutional linguistic communication furnished an object of contention.

Hence, early on inwards the mass Gienapp notes that around viewed linguistic features every bit crucial inwards declaring rights, farther observing that the “Anti-Federalists became preoccupied alongside language’s capacity to regulate ability . . . [and] roughshod dorsum on linguistic precision every bit the solely machinery that mightiness wall off the dangers invited past times vesting the Constitution alongside the sort of vast discretion that the Federalists’ projection necessarily required” (82-83). This mightiness heighten the enquiry of why the Bill of Rights, ofttimes conceived every bit a triumph of the Anti-Federalists, is non itself to a greater extent than linguistically precise. Gienapp returns to just this point, observing inwards his tidings of the amendments that became the Bill of Rights that James Madison had included the vaguest of these—the Ninth too Tenth Amendments—“to deliberately weaken the textual additions fifty-fifty further” (195). Despite the Anti-Federalists’ aspirations toward linguistic precision, the Bill of Rights hence was designed inwards percentage to undermine for certain meaning.  

Madison too his fluctuations over fourth dimension (recently brought to the fore inwards Mary Bilder’s magisterial Madison’s Hand) play a crucial purpose inwards Gienapp’s story, every bit the transformations inwards Madison’s approach to the Constitution largely rail the alter over the course of didactics of the mass inwards how the Constitution is understood. As Gienapp indicates almost halfway through his story, “The Constitution needed fixing, simply inwards addressing that demand it mightiness also live fixed, perpetually. The Virginian who had otherwise celebrated the creative constitutional 2nd was directly hinting that it mightiness live express non substantively simply chronologically. The Constitution was to live fleshed out, simply Madison was directly wondering, how long would this menstruum last?” (162) Only a decade, The Second Creation concludes.

Rendering the Constitution a fixed object occurred inwards 3 stages, which Gienapp reviews toward the halt of the book. The kickoff involved “conceiving of the Constitution every bit a linguistic artifact,” too the 2nd 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 alongside contemporary interpretive debates close the Constitution, simply Gienapp leaves these links largely unstated during the course of didactics of The Second Creation. This gap invites speculation close around of the book’s implications.

The Second Creation’s involvement inwards fixing too fixation ties into recent debates close the “liquidation” of constitutional meaning. In short, every bit Will Baude’s forthcoming article “Constitutional Liquidation” illuminates, those espousing a notion of liquidation—itself derived from Madison’s writings—view post-Constitution practise every bit settling the pregnant of price that mightiness select been underdetermined or ambiguous at the fourth dimension of ratification. Gienapp’s flush of the menstruum next the Constitution’s creation could live seen every bit a larger sort of liquidation narrative, i dealing non alongside a particular clause or provision simply rather alongside the Constitution every bit a whole. Under this account, the Constitution itself was an underdetermined sort of object, which had to live cashed out through the debates inwards Congress that Gienapp catalogues. So liquidated, it turned out to live a document whose importance lay inwards its writtenness, rather than inwards 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 affair less than the fact that the Constitution turned out to live fixed before long after the Founding too has been fixed e'er since. This redescription would let Gienapp’s mass to live reincorporated into a defence of originalism rather than serving every bit a critique of it.

Another expanse of enquiry that pertains to contemporary debates inwards constitutional interpretation has to create alongside the relation betwixt constitutional authorship too readership, or fifty-fifty what counts every bit authorship. While Gienapp observes the plough to assertions of willful constitutional authorship, he also delves into debates close whether the Constitution should live “read every bit ordinary people would” or according to “lawyers’ . . . proficient mediation” (p. 98); he likewise outlines the varying uses to which participants inwards the debate over the Jay Treaty lay the Constitutional Convention too the ratification debates. For contemporary constitutional theorists, the enquiry of whether the Constitution should live read through the lens of its authors or its master copy readers—the ratifiers—is connected alongside what legitimates the Constitution inwards the kickoff instance. The declaration of around master copy pregnant originalists who depict on social contract theory is that the Constitution should live understood according to what its linguistic communication would select conveyed at the fourth dimension because that feel is what the people would select ratified, rather than whatever secret pregnant inserted past times the Constitution’s drafters. Influenza A virus subtype H5N1 difficulty arises alongside price similar “habeas corpus” or other words of legal significance, which around mightiness fighting would select held solely a vague pregnant for non-lawyers. Yet texts similar judge of the peace manuals too other industrial plant aimed to interpret legal doctrine to a lay audience cashed out these price for the ordinary reader, too so the dichotomy betwixt legal too non-legal understandings was non every bit absolute every bit it mightiness seem. Because of the centrality of legitimacy to constitutional debates close interpretation today, I would live curious to remove heed Gienapp elaborate inwards to a greater extent than particular how too whether legitimacy plays into the flush that he tells inwards The Second Creation, peculiarly if it becomes associated alongside around constitutional actors to a greater extent than than others.    

It is to our benefit, however, that Gienapp has left opened upwards these questions close the connector betwixt the history he is telling too its potential normative implications for constitutional theory. The richness of his flush too its turns too surprises volition provide many of us alongside ample cloth for engagement too deliberation inwards the years to come. 

Bernadette Meyler is Carl too Sheila Spaeth Professor of Law too Co-Associate Dean for Curriculum at Stanford Law School. You tin accomplish her past times electronic mail at bmeyler@law.stanford.edu