The Second Creation: Fixing the American Constitution in the Founding Era'

H-FedHist Marriott on Gienapp, 'The Second Creation: Fixing the American Constitution in the Founding Era'

Review published on Monday, April 29, 2019

Jonathan Gienapp. The Second Creation: Fixing the American Constitution in the Founding Era. Cambridge: Belknap Press, 2018. 451 pp. $35.00 (cloth), ISBN 978-0-674-18504-3.

Reviewed by Alexander V. Marriott (Alvin Community College)Published on H-FedHist (April, 2019) Commissioned by Caryn E. Neumann (Miami University of Ohio Regionals)

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=53372

“As to politics, we have no fact, no future,” wrote a frustrated Henry Clay in 1833. “After 44 years of existance [sic] under the present Constitution what single principle is fixed? The Bank? No. I[n]ternal Improvements! No. The Tariff? No. Who is to interpret the Constitution? No. We are as much afloat at sea as the day when the Constitution went into operation.”[1] In Jonathan Gienapp’s exploration of constitutional “fixity,” The Second Creation: Fixing the American Constitution in the Founding Era, Clay’s despair a generation after the founding highlights how uncertain and “deeply in flux” the meaning and limitations of the US Constitution were (p. 5). While historians might take it for granted that constitutional questions would vex people in the midst of the nullification crisis, Gienapp contends that these deep constitutional uncertainties bedeviled the first Congresses, populated by many of the ratification Federalists that had victoriously ushered the Constitution into operation. Thus, Gienapp contends, if the very notion that the Constitution is supposed to have a fixed meaning found in the text—which legal originalists and their opponents have largely long taken for granted—is mistaken (or “invented” during debates in the 1790s, the titularSecond Creation), then “it will ... cease to make much sense to search for any essential set of constitutional practices that could have been hardwired into the Constitution. Appreciating how the idea of a fixed Constitution was invented, in other words, should encourage us to imagine anew, in our own way, what the Constitution ought to be” (p. 334).

To set up this relatively new and provocative examination of the “hidden ways in which the American Constitution was created,” Gienapp begins with an examination of American constitutional thought qua constitutions before the 1787 drafting and 1787-8 ratification (p. 435). Here, he contends that when they wrote constitutions down Americans did not imagine they were pinning their new governments down. Instead, they imagined their “constitutions as dynamic interlocking systems of powers rather than inert objects defined by their textuality.” Therefore, American constitutionalism was “simultaneously fixed yet changing” (p. 23). This emphasis on a “lost” constitutional tradition of “system” versus what we have now of an “archival” Constitution, fixed in the past, constitutes the main argument of the book. Secondarily is the provocative notion that Enlightenment thinkers like John Locke and his American cousins like James Madison were, at times, mere inches away from the postmodernist linguistic assault on meaning and definition—thus leading to an iteration of Madison that rejects the notion that the Constitution can (or should) have a fixed meaning, before emerging as a Madison hell-bent on fixing the Constitution in linguistic stone (this book, like many others that examines the subject and period, becomes an extended meditation on Madison’s career and evolving

If the Constitution was not originally drafted as a fixed artifact but rather as a flexible system meant to vigorously address problems, a written document without any real definitions, how did we get to wide consensus that the Constitution does belong in the past as a product of specific historical moments, with specific and knowable historical meanings? To those questions, Gienapp devotes the rest of his book, exploring the congressional (sometimes the cabinet) debates of the early and mid-1790s. Gienapp believes these debates, even with their emerging partisan connotations, actually were the moments of this “second creation,” that the 1790s were “not yet a time of ordinary politics. Perhaps only in the extraordinary context in which national politicians currently found themselves, in which they were putting the Constitution to work so closely on the heels of its adoption, was such creative constitutionalism permissible” (p. 162). The moments of clashing constitutionalism that Gienapp believes are most illuminating are well-known moments: the debate over executive removals, the debate over whether constitutional amendments should be incorporated into the text of the Constitution or appended, the debate over the National Bank, and the debate over John Jay’s Treaty with Great Britain. Rereading these famous debates with an eye toward how early republicans tried to fix the limits of the Constitution and its interpretation, Gienapp offers some fresh insights and intriguing narration.

The audience for this reexamination of the Constitution and familiar—to specialists, anyway—debates of the 1790s is unclear. Gienapp seems quite determined to have something to contribute to the debate that now swirls around all Supreme Court decisions and, given the current administration’s proclivities, judicial appointments vetted for ideological agreement by the Federalist Society. The historiographical discussion that historians of the Constitution and the early republic would like to see in such a book is relegated to the voluminous endnotes (more than one-fifth of the book’s 451 pages), so as to avoid putting off the general reader, or the legal audience of young lawyers who may be assigned this book in a seminar on constitutional history or interpretation. There is no real or explicit sense in the text that any of the arguments or interpretations contained therein are disputed, controversial, or contested. In that sense, trying to make the book accessible by avoiding the historiographical slog opens Gienapp up to charges of stacking the deck by hiding detractors in the fine print, which few but specialists will ever really examine. Whether this was Gienapp’s choice, or a publisher’s decision, is not addressed in the book.

Gienapp’s Second Creation does add another volume to the ongoing exploration of Madison’s constitutional journey—which specialists in the 1790s and Madison are likely to find stimulating. The book also is a healthy reminder of how precarious the experiment in republicanism and constitutionalism was in the late 1780s and early 1790s. The uncertainties of the founding are easy to overlook or simply forget in what seems the ossified certainties of the present—but they are very much front and center here. That is to be commended.

Gienapp’s main argument is likely to please no one, ultimately. Originalists are going to vigorously dispute the notion that the Constitution has any fixed boundaries emerged as a hasty series of rear- guard afterthoughts in the 1790s. They will have to, however, take solace in the notion that even if the founders created and ratified the Constitution in a heady and unguarded moment of “flexibility,” they reversed course nearly as fast to impose boundaries and limits upon their own creation. No less an authority than John Marshall famously testified to his own “capture” by the “second creation” in

Marbury v. Madison (1803): “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited & to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?... It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislative may alter the constitution by an ordinary act.”[2] Legal progressives will find the mining of the congressional debate archive of the 1790s cold comfort to what has been a logically coherent case against the founders since Charles Beard and Woodrow Wilson—either for acting with corrupt intent, which Gienapp largely downplays or rejects, or simply because they were from a bygone pre-industrial era motivated by the stringent theories of Isaac Newton instead of the evolutionary doctrines of Charles Darwin.[3] That originalists are going to be defeated by engaging in an act of originalism would be ironic if it were not a bridge too far—or undercut by the very evidence upon which Gienapp’s case is made (or ignores).

Beyond the warring lawyers of the twenty-first-century republic, there are some fairly significant weaknesses in The Second Creation’s argument and contextual framing of the period that will undermine Gienapp’s new look with specialists. The first is the self-imposed evidence limitation that Gienapp embraces. The early congressional debates among the luminaries who largely just ratified the Constitution and were now battling over meaning are fascinating—and Gienapp’s commitment to following them is laudable—but they are easily criticized as just so many of Cicero’s speeches before the Roman Senate; what does he say in private? Not only are private sources downplayed, but easily accessible counterevidence is also not really dealt with in any real sense, which will lead to charges of cherry-picking and decontextualization. James Wilson very pointedly suggested in his lectures on the law that Great Britain had “no such thing as a constitution, properly so called,” because it was not written or known with anything resembling certainty or stability.[4] Marshall disparaged the British Constitution for creating an unlimited system where “their parliament is omnipotent.”[5] The clear commitment to written—and limited—constitutionalism is written all over the documents and debates of the 1770s and 1780s. That Gienapp skips over a mountain of evidence is hardly an act of scholarly courage. To any specialist, it seems a bizarre oversight, or worse.

This brings us to perhaps the most significant omission of Gienapp’s recounting of American constitutionalism—its ultimate goal. In reading Gienapp’sSecond Creation, the original “First Creation” (unclear if this irony is lost on Gienapp) was an almost aimless creative act that was supposed to be unfinished, “a ‘first draught’ ... a work in progress, in need of activation and subsequent work—in essence an imperfect and unfinished object” (p. 81). At no point does Gienapp discuss what end the framers imagined the Constitution was meant to secure; never once does the subject of natural rights get any systematic treatment in American constitutional thought—aside from the briefest of passing references. That Madison’s discussion of parchment barriers—which Gienapp fastens on as evidence of Madison’s dismissive attitude toward the revolutionary value of a written constitutional text versus the importance of constitutions as systems of power against power—was largely motivated by his concern for how best to achieve a historically improbable end is missing in Gienapp’s account. In Federalist no. 37, Madison suggests that the convention attempted to apply a republican remedy to a classic republican disease, that of “combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form.”[6] All of these goals—stability, strength, liberty, and republicanism—were always important to Madison (remembering that helps account for what seems like constant changes of constitutional opinion) and

Citation: H-Net Reviews. Marriott on Gienapp, 'The Second Creation: Fixing the American Constitution in the Founding Era'. H- FedHist. 04-30-2019. https://networks.h-net.org/node/5299/reviews/4071957/marriott-gienapp-second-creation-fixing-american-constitution Licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. 3 H-FedHist the rest of the framers. They subscribed to Charles Howard McIlwain’s trenchant observation that the “limiting of government is not the weakening of it.”[7] While such notions may no longer be relevant to those who wish “to imagine anew, in our own way, what the Constitution ought to be,” the goal of history is not to demonstrate that people centuries ago ratified our own opinions—the very same critique laid at the feet of the originalists that this work seems to take to task (p. 334). Legal positivists and Progressive legal theorists long understood that they did not want (or need) the framers to justify them—and that was a logically coherent position whether one agreed with it or not.

In that sense, Gienapp’s Second Creation, despite being motivated by the goal of undermining originalism’s penchant for preserving the ghosts of the founders into the twenty-first century—and listening to their counsel—largely endorses that mode of thinking by simply suggesting those ghosts thought differently than has commonly been assumed. This is not a new development in historical writing as scholars have tilted in this direction recently—Joseph J. Ellis anticipated Gienapp’s argument implicitly in The Quartet: “The Constitution was intended less to resolve arguments than to make argument itself the solution. For judicial devotees of ‘originalism’ or ‘original intent,’ this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting political dialogue that, like history itself, was an argument without end. Madison’s ‘original intention’ was to make all ‘original intentions’ infinitely negotiable in the future.”[8]

In neither case is it terribly convincing that Madison or any other founder—even as expansive a constitutional mind as Marshall’s—imagined that a properly constituted republican government ultimately had no Rubicons at all, that there was nothing a well-ordered state could not do. Such a notion would have struck them as ridiculous as it was dangerous. Historians ought to be able to acknowledge that easily demonstrable truth without having to endorse any particular legal or constitutional theory in the twenty-first century.

Notes

[1]. Henry Clay to Francis T. Brooke, Washington, January 17, 1833, The Papers of Henry Clay, vol. 8, Candidate, Compromiser, Whig: March 5, 1829–December 31, 1836, ed. Robert Seager II (Lexington: University Press of Kentucky, 1984), 613.

[2]. John Marshall, Opinion in Marbury v. Madison (February 24, 1803), John Marshall: Writings, ed. Charles F. Hobson (New York: Library of America, 2010), 249.

[3]. Woodrow Wilson, The New Freedom (1913; repr., New York: Gray Rabbit Publications, 2011), 27.

[4]. James Wilson, Lectures on Law, Delivered in the College of Philadelphia, 1790-1791, Comparison of the Constitution of the United States, with that of Great Britain, Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), 1:718.

[5]. John Marshall, Opinion in Dartmouth College v. Woodward (February 2, 1819), John Marshall: Writings, 403.

[6]. James Madison, Alexander Hamilton, and John Jay,The Federalist Papers, ed. Isaac Kramnick (New York: Penguin Books, 1987), 243.

[7]. Charles Howard McIlwain, Constitutionalism: Ancient and Modern (Ithaca, NY: Cornell University Press, 1947), 133.

[8]. Joseph J. Ellis, The Quartet: Orchestrating the Second American Revolution, 1783-1789 (New York: Alfred A. Knopf, 2015), 173.

Citation: Alexander V. Marriott. Review of Gienapp, Jonathan,The Second Creation: Fixing the American Constitution in the Founding Era. H-FedHist, H-Net Reviews. April, 2019.URL: http://www.h-net.org/reviews/showrev.php?id=53372

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.