For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution inwards the Founding Era (Belknap Press, 2018).
Among the many achievements of Jonathan Gienapp’s Second Creation is the book’s elegant as well as decisive dismantling of many tidy just-so stories that constitutional police line scholars tend to say themselves near the menses betwixt 1787 as well as 1796.
Statecrafters are non settling downward to the line of piece of job concern 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 important questions are non only omnipresent, they flare upward as well as chop-chop assume existential proportions: tin the Senate demand a purpose inwards removing heads of departments, or is that ability constitutionally committed to the president alone? If the president signs a treaty as well as the Senate ratifies it, tin the House of Representatives spend upward to execute it, or must Congress legislate accordingly? Ought the Constitution hold out amended – as well as if so, should those amendments hold out interleaved amid the relevant provisions of the text, or should they hold out appended to the terminate of the document? Confusion as well as discord reign.
As Gienapp illustrates, for these as well as other foundational questions inwards the 1790s, at that spot were no correct answers waiting to hold out discovered. Even amongst the Constitution inwards hand, the members of the founding generation had to invent solutions. The Constitution was non self executing. Continuous acts of creation were required to ignite the engine that would inwards plow drive the “machine that would move of itself,” to borrow the championship of Michael Kammen’s prizewinning mass from 1986.
Indeed, fifty-fifty the theoretical undercarriage of the machine needed to hold out developed. Did the U.S. of A. Constitution receive got subsequently its unwritten ancestor, the British constitution, as well as deport inside it the same mystical combination of fixity as well as perpetual modify that ran from Magna Carta of 1215 through the Glorious Revolution of 1688 as well as beyond? Or was America’s Constitution something unlike – a sacred text that lived inwards an archive piece setting the telephone commutation Earth rules for the polity? Over the course of written report of the 1790s, Gienapp argues, the Constitution became the latter: “an authoritative text circumscribed inwards historical time” (4). But, equally The Second Creation convincingly demonstrates, such a excogitation did non inhere inwards the document itself. On the contrary, the 1790s witnessed simply about other human activeness of creation that was equally powerful equally the drafting as well as ratification of the 1780s: the constitution of the Constitution. The interpretive modes as well as the ontological theory that came to regulation what nosotros forthwith term “constitutional thought” were themselves artifacts of debates that dominated the immediate post-founding era.
Perhaps the greatest stupor that Gienapp presents to the conventional story of early on U.S. of A. constitutional history steals upon the reader quietly, inwards the cast of an absence. It is the non-presence of the Supreme Court. Chief Justice John Jay appears – non inwards his scarlet judicial robes, but equally the negotiator of the controversial treaty amongst Great Britain that brings the House into collision amongst the Senate as well as President Washington. John Marshall, the lanky 4th primary justice, slopes into frame for only 2 brief cameos: a foreshadowing reference to Marbury v. Madison (1803) as well as 1 declaration inwards Virginia’s ratifying convention inwards 1788. Personnel aside, the Court’s jurisdiction nether Article III is discussed over the course of written report of a few pages. Many Federalist essays are analyzed, but non Federalist No. 78, inwards which Alexander Hamilton described the “federal judicature” equally “an intermediate trunk betwixt the people as well as the legislature” that could “keep the latter inside the limits assigned to their authority.”
Gienapp’s narrative does non focus on these canonical elements of constitutional police line scholarship because he does non regard them equally elements of the item founding menses that is the object of his study. The focus of The Second Creation is the “great competition over competition practices of constitutional justification, a concerted travail – waged from all directions – to present how as well as why the Constitution permitted item kinds of reading as well as usages as well as non others” (8-9). Although such efforts continued into the nineteenth century, Gienapp’s aim is to illuminate non only the procedure of constitutional meaning-making, but also the “fixing” of the Constitution. “Fixing,” equally Gienapp uses the term – next the usage of his eighteenth-century sources – is “to resolve the uncertainties latent inwards an amorphous as well as unknown system.” In as well as so doing, however, the generation of the 1790s also became habituated to a minute pregnant of “fixing”: viz., viewing the Constitution equally a stable organisation that was “fixed rigidly inwards place” (4).
In the immediate post-ratification period, constitutional debates roiled inside virtually every American governmental institution: the solid reason legislatures; the House of Representatives; the Senate; as well as the presidency. As Gienapp demonstrates, debates that were deeply political as well as increasingly partisan must also hold out understood equally existence near how constitutional declaration would work. On issues equally varied equally the removal of executive officers, the procedure of adding amendments, the establishment of a national bank, as well as the implementation of the Jay Treaty, statecrafters argued non only near the merits of the query but also near what prove counted.
Arguments near whether the document was a consummate text or a laid of draft agreements to hold out worked out as well as amended over fourth dimension also took shape during this period. Gienapp frames this query equally a selection betwixt “archival” as well as “indeterminate” understandings of the Constitution. “[W]here is your Constitution?” Gienapp recounts Maryland congressman Michael Jenifer Stone bespeak Madison during the House debate over the banking concern inwards 1791. “Is it amid the archives?” Gienapp’s respond is yes: increasingly during the 1790s, Madison turned to the history of the Constitution’s creation to back upward his ain policy arguments as well as to fend off his opponents’ efforts to portray the organisation equally incomplete. In Gienapp’s account, Madison’s “constitutional exegesis converged amongst historical excavation” (233).
Always, Madison was at the pump of these debates. And hence Congress – non the Court – is at the pump of Gienapp’s story of how American constitutionalism began to hold out made inwards these years. In contrast to the menses subsequently 1800, the locus of constitutional give-and-take inwards the 1790s was the flooring of the House, as well as to a lesser marking the Senate. In this crucial decade, Marshall was non the dandy primary jurist but a practicing lawyer, a Federalist stalwart inwards Virginia’s solid reason government, as well as an envoy to French Republic inwards the XYZ Affair. The Court was non the arbiter of federalism as well as the separation of powers that it would movement into the nineteenth century.
Marshall, similar Madison, occasionally spoke inwards price of the archival Constitution. But inwards both cases, 1 mightiness resist Gienapp’s characterization of these efforts equally truly historical. Instead, they seem to a greater extent than equally creative uses of the historical tape – to a greater extent than akin to a lawyer’s than a historian’s utilization of history. Both Madison as well as Marshall tended to recast equally historical fact what was inwards reality their own, reconstructed memory. As Gienapp observes, Madison was known to receive got kept notes of the debates inwards the Constitutional Convention of 1787, as well as he ofttimes adverted to these records during the controversies of the 1790s. Moreover, equally Mary Sarah Bilder has demonstrated, as well as equally Gienapp acknowledges, Madison repeatedly revisited as well as revised these notes throughout his lifetime, as well as the version that was posthumously published inwards 1840 had undergone decades of edits as well as emendations.
After Marshall became primary jurist inwards 1801, he likewise cited history from the drafting as well as ratification menses before to bolster his opinions. The number was twofold: to cloak the Court amongst authoritative cognition near the Constitution’s pregnant at the fourth dimension that it was created, as well as to distance the commercial commonwealth of the early on nineteenth century from its shaky confederal origins. In his 1819 sentiment inwards McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the U.S. of A. as well as invalidating Maryland’s travail to taxation the Bank, Marshall portrayed ratification equally both authoritative as well as remote. In response to Maryland’s insistence that the Union was a compact amid the states, Marshall noted that the Constitution had been ratified non yesteryear the solid reason legislatures, but yesteryear the people, “who acted upon it inwards the only agency inwards which they tin human activeness safely, effectively, as well as wisely, on such a subject, yesteryear assembling inwards Convention.” Marshall did non specifically cry that he himself had been acquaint inwards the Virginia ratifying convention thirty-one years earlier, equally a delegate from Henrico County. But his audience would receive got known.
As Gienapp demonstrates, the martialing of founding-era prove to back upward latter-day constitutional arguments is an onetime practice. But it is non an master practice. Like as well as so many other elements of the American constitutional system, it was invented.
Alison L. LaCroix is Robert Newton Reid Professor of Law as well as an associate fellow member of the subdivision of history at the University of Chicago.
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