In the chaos otherwise known as the Trump era of American politics, history, it seems, has leapfrogged into the foreground of discussions over the country’s current predicament. In the search for answers about who we are as a nation and how we got here, a wave of new historical monographs has returned to the founders, their intentions, and their relevance for today. One such work, Joseph Ellis’s engaging American Dialogue: The Founders and Us, compares attitudes toward race, equality, law, and foreign policy during the founding period and our own. Another, Jill Lepore’s ambitious These Truths: A History of the United States, surveys these seminal issues by tracing the changing meanings of “liberty” and “equality” from the founding era to the present.
Jonathan Gienapp’s The Second Creation: Fixing the American Constitution in the Founding Era has a narrower scope, offering a close reading of constitutional history with no mention of the present. Yet his study nonetheless focuses on many of the structural and institutional issues that continue to consume us—including presidential powers, the role of Congress, and the use and abuse of originalist approaches to the Constitution—and in so doing raises questions that shine a light on today’s national debates.
An intellectual historian of America’s founding period, Gienapp is particularly concerned with how the Constitution became an authoritative document in the early years of the Republic. “What kind of an instrument was it?” he asks. Was it intended to be a law, a treaty, or a statute? Was it limited to the powers that it enumerated, or was it meant to convey implied powers? Was it intended to be applied via a process of “excavation,” with lawmakers mining the original text, or “invention,” with lawmakers taking their cues as time and context demanded from the spirit of the founding document? Ultimately, Gienapp shows us, the arguments for excavation and invention converged, a trend that culminated in the debate over the 1795 Jay Treaty between the United States and Britain, which sought to resolve issues lingering from the Revolutionary War. According to Gienapp, the terms of that debate bestowed upon the Constitution an unprecedented “fixed” and “sacred” status—one that, the author contends, we continue to honor to this day.
Gienapp begins his study not with the Constitutional Convention of 1787, as most scholarship on the making of the Constitution does, but instead with the decade after ratification, when the first pressing questions about how to implement the Constitution challenged politicians and the public. Concerned less with the implications and consequences of the policy decisions taken at the time, and more with the ontological evolution that framed the debates over the Constitution’s implementation, Gienapp endeavors to show us the transformation of what he terms “the constitutional imagination” during this first decade of the Republic.
The congressional debates of this period, he argues, transformed the Constitution from a set of “parchment barriers” with an indeterminate set of definitional guidelines to a “fixed,” “archival,” and “sacred text” in which authority became fully tethered to words rather than to the possibility of perpetually open-ended implication. As Gienapp contends, during the early Republic, the Constitution was thereby fixed in two senses: its nature and purpose was clarified and it was firmly established as an object of authority.
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Gienapp takes as his conceptual launching pad the “necessary and proper” clause of Article I, which defines the powers and responsibilities pertaining to Congress and over which the Federalists and Anti-Federalists had sustained hotly contested debates. For the Anti-Federalists, the lack of specificity in the wording was cause for concern, since it would inevitably open up the doors for the abuse of executive powers. Was the phrase “necessary and proper” really “unbounded,” “impossible to define,” and thus “vulnerable to misreadings, distortions, and sophistic interpretation of all sorts?” And did this then render the Constitution “susceptible, as the Anti-Federalists derisively claimed, to lawyers’ manipulation,” rather than remain a document accessible to the people?
To combat the perils of insufficiently constrained legal authorities and political power-mongering, the Anti-Federalists had sought, largely unsuccessfully, to compel more specificity in the language during the Constitutional Convention. Now, in the early years of the Republic, their intellectual heirs renewed this call to articulate specific powers rather than allow general, aspirational principles to dictate policy decisions. Those who adhered to the idea of a set of implied powers insisted that any uncertainty could be addressed by the amendment process and by Congress’s legislative power, which would be sufficient to fill in the gaps left by the vagueness of the Constitution’s wording. Gienapp convincingly argues that, over the course of several seminal debates, these antagonistic views began to merge. The aspirational and the concrete began to find common ground, and in so doing, turned the Constitution into a fixed, textually authoritative document whose standard for interpretation resided in its archival past.
An initial step toward envisioning the Constitution as a fixed entity emerged in 1789, when the First Federal Congress met and began trying to implement policies on the many issues on which the Constitution was “unfinished” and silent, leaving politicians uncertain as to its application. At issue in this first Congress was the power to remove officials from executive office: Was it reserved exclusively for the president or, like the appointment power, for the president with the Senate’s consent? To find the answer, politicians looked to the historical record, pitting memories and documents from the Constitutional Convention against one another. As a result of this process, Gienapp contends, the removal debate introduced an “essentialist constitutional imagination,” a recognition that the Constitution itself was bound by the intent of its makers—an intent that was to be found in the discoverable past.
Gienapp sees this debate and its appeal to historical references as “the first concerted, communal effort following ratification to draw upon the Constitution to justify claims, inaugurating a powerful set of practices for using and conceiving of the document that lingered well beyond the debate’s conclusion.” While it was ultimately decided that the power to remove was vested in the president alone, the historical nature of the debate is what stands out for Gienapp, with lawmakers envisioning the Constitution as more fixed than uncertain, anchored to the original intent of its authors and ratifiers.
A second step toward viewing the Constitution as a fixed and finished entity took place over the issue of whether to make the Bill of Rights supplemental to the Constitution, or to incorporate it directly into the body of the text. The decision to add the Bill of Rights as a series of amendments pointed to the Constitution’s acceptance as a sacred text, one whose original form and language should not be tampered with. The incorporation debate, Gienapp concludes, realized the Constitution as an “interpretive object” consisting of two parts that together created a “set of textual guarantees,” and as such, provided the basis for decisions about the Constitution’s proper application.
Questions about the essence and scope of the Constitution took yet another step toward fixity in the 1791 debate over Treasury Secretary Alexander Hamilton’s effort to create a national bank, one that he and the bank’s supporters eventually won. Once again, politicians faced the question of whether the language of the Constitution allowed for implied powers. How much discretion, they wondered, was justified? Opponents of the bank argued that the Constitution did not, in fact, grant Congress the power to charter a national bank. Referring to “the archive of the Constitution’s creation” and the “original intent of those who had authored and approved of the Constitution,” the bank’s opponents eschewed any interpretation beyond the explicit language—but to make their argument and define “original intent,” they included not just the original authors of the Constitution but also the states that had ratified it, thus carving out a role for public opinion as a factor. Determined to refute these arguments, the bank’s supporters embraced their opponents’ playbook, citing archival and textual references and original intent rather than relying solely on the claim to implied powers. In this latest debate over the Constitution, Gienapp notes, both sides added a new element, one that he hints at in earlier debates but which found fuller expression here: the importance of popular sovereignty and public opinion as a factor in the arguments.
Five years later, the arguments over the Jay Treaty renewed the controversy between those who saw the Constitution as unfinished and open to implied powers and those who sought fixity in the Constitution’s language and terms. The treaty covered various contentious issues between the United States and Britain, including trade, the detention of US soldiers, and the presence of British troops on US soil. But as Gienapp presents it, the debate’s significance lay in the controversy over the treaty-making power itself: Was Congress authorized to play a role? The Constitution specified that the power to enter into treaties resided with the president upon approval by the Senate. But the House questioned the relationship between treaty-making powers and legislative ones, with the latter arguably representing the will of the people. The political fervor on both sides was heightened by the fact that the Jay Treaty privileged the United States’ relationship with Britain, so recently the enemy of the colonists, and demoted its relationship with France, whose revolution so many Americans had identified with.
Ultimately, the legislators resolved that the House’s consent power was not to be added to that of the Senate. But here, as with the other debates, Gienapp is more concerned with the structure of the arguments than with the political controversy itself. To argue their side of things, the Federalists reaffirmed the growing notion of the Constitution as a sacred text, constructed by the “unique wisdom of the drafters,” and advanced arguments concerning the original intent of its authors. But they also cited the authority of the people, as made apparent at state ratifying conventions, and concluded that to reverse anything stated in the Constitution would therefore go against the popular will. Those advocating for House participation in the ratification of treaties pegged their arguments to the same source of authority: the archival record, including the ratifying conventions. Both sides thus saw themselves as espousing the “true meaning and spirit of the Constitution.”
Confronted with the House’s formal request to have a voice in treaty matters, George Washington turned to his own personal memories, reminding legislators that he, too, had been “a member of the General Convention, and knowing the principles on which the Constitution was formed,” he was therefore an authority on the original intent of its authors. Washington maintained that the House was wrong about what the Constitution’s authors had intended. The terms of his explanation—archival references, the original intent of the founders, and the popular authority of the document—echoed those that had already been used in arguments on both sides of the issue.
According to Gienapp, the debate over the treaty power thus marked the culmination of an agreement upon the Constitution’s fixed nature. The president, the Senate, the House, and the political parties all concurred that the meaning of the Constitution was unchanging and that questions about the powers it granted and the protections it offered, whether explicit or implied, were to be answered by excavating the Constitution’s original meaning. They now agreed not on policy prescriptions per se, but on what the Constitution was—a sacred artifact—and on how it was to be interpreted and applied: according to textual analysis and archival excavation about its original intent. The Jay Treaty was wildly unpopular among the people, but more important to Gienapp was the affirmation that had been granted to the Constitution itself during the debate. As the country’s first decade wound to a close, the nation’s leaders had finally finished creating its founding document.
Pivotal to this transformation of the constitutional imagination, and to Gienapp’s study, is the evolution of James Madison’s understanding of the Constitution. For Gienapp, Madison perfectly illustrates the evolving mind-set of the founding era: Initially a stalwart defender of invention as the preferred means for taking the Constitution into the future, Madison became an advocate of the idea that the Constitution’s guarantees were “political scriptures.” During the Constitutional Convention as well as the debates over the “necessary and proper” clause, the Bill of Rights, and the power of removal, Madison had argued against the Constitution’s enumerated powers on the grounds that such fixity was nearly impossible and provided an insufficient guard against abuses of power. But when it came to the bank dispute, Madison mounted a constitutional challenge to Hamilton based on the Constitution’s fixed and self-contained character, citing its explicit limits on such a venture. Madison thus marks an important turn in the growing consensus about the Constitution’s fixed and authoritative nature.
Gienapp’s study—intellectual history as textual exegesis at its best—offers a convincing and invaluable examination of the words and ideas that marked the evolution of the American constitutional imagination. Where it leaves its readers wanting is on the implications of this transformation: How should we judge our changing understanding of the Constitution in terms of the issues that divided the country, then as now, such as racial and economic inequality? What were the political results of this evolution? What, specifically, did the trend toward textual fixity mean for the idea of the Constitution as a people’s covenant? Or was that merely, as it often appears, essentially a scrap tossed to those who were out of power but were nevertheless vocal and potentially disruptive? Does Gienapp’s recasting of originalism—a red flag for liberals who recognize all too well its pernicious uses throughout history by Supreme Court justices seeking to perpetuate racial inequality, curtail civil liberties, and stymie civil rights—provide a new way to undermine its former use as a cudgel against rights and liberties? And turning to more structural issues, how do these findings speak to today’s controversies regarding presidential powers, congressional pushback, and the possibility of constitutional reform? Gienapp himself shies away from such future-oriented musings, although he does concede when discussing the Bill of Rights controversy that, had things gone differently, “[p]erhaps Americans would have come to think about rights and their constitutional status in wholly different, nontextual ways.”
Just because Gienapp forgoes the deeper political implications of this evolution, as well as the possible relevance of his work for today, doesn’t mean that readers should do likewise. Would a constitution less fixed in time, less “sacred” and more malleable, provide more fluidity in terms of remedies to the excesses of executive power? Would it be helpful now if the president’s power to remove executive-branch officials was dependent on the Senate’s assent? Perhaps the greatest lesson to be taken from Gienapp’s work resides in his preoccupation with the terms of debate rather than policy outcomes—for while the Constitution may be fixed, he has shown us that its power can and does alter with the times.
