Constitution

Were The Framers Originalists (and Does It Matter)?

First thoughts on Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era

|The Volokh Conspiracy |

Professor Jack Balkin has been hosting a blog symposium about an important new book about the founding by Professor Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era. From the book description:

A stunning revision of our founding document's evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution?

Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the Founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption?a story with explosive implications for current debates over constitutional originalism and interpretation.

When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document's uncertainty, and?over time?how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution's most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.

My contribution to the symposium centers on originalist theory, and went up this morning. It begins:

Once upon a time, it was common to respond to originalist arguments in constitutional interpretation by arguing that even the framers themselves were not originalists. And if they were not, how could or why should we be? Exhibit A for this argument was H. Jefferson Powell's The Original Understanding of Original Intent, which pointed to many places that prominent framers had denied that their own subjective intent was dispositive of the document's true pubic meaning.

This Exhibit worked against "original intent" originalism, but as originalist thought became more careful and rigorous, most originalists came to agree that original meaning was controlling, not original intent. In other words, todays originalists share the position of the framers in Powell's article, so there was no mismatch between originalism and the framers.

But now along comes an important and fascinating new book from Jonathan Gienapp, The Second Creation, which threatens to pose a new and deeper version of this problem for today's originalists. In Gienapp's telling, the framers did not agree that the Constitution was a written legal text, that it was complete, that its meaning was fixed, or that it was subject to specific rules of legal interpretation. All of these things were subject to contestation throughout the 1790s. The emergence of the fixed, written, legal Constitution emerged only contingently and years after the Founding.

If Gienapp is right, what are originalists to make of it?

You can read my answer here.

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  1. Seems to me the very fact that there is an amendment process means the framers intended it to be a legal document, interpreted strictly, and not adjustable as sensibilities changed at each election.

    1. It contains guideposts which constrain radical movement in the body politic. There are ways to change, but hard for a reason if not impossible.

    2. Then why not include a section in the Constitution specifying that as the mode of construction?

  2. “In Gienapp’s telling, the framers did not agree that the Constitution was a written legal text, that it was complete, that its meaning was fixed, or that it was subject to specific rules of legal interpretation. ”

    Wouldn’t the supremacy clause (Article VI, Clause 2) of the US constitution itself stand against such a view?

    1. But only if you already assume it’s a legal text. If not, if it’s just a series of thoughts and suggestions and brainstorming ideas, then that clause has no more significance than the rest of it. (Same logic applies to me remark on having an amendment process.)

      1. So…politicians should be able to grow their power at will? Or at the (claimed on their behalf) will of a(n often transient and bare majority) of people?

        Sure. Just ’cause all human history is rotten to the core with this doesn’t mean the US freeballin’ won’t work out just swell.

      2. Why would the supremacy clause have been included at all if it wasn’t meant to be a legal text? There may have been some from the founding era who thought it shouldn’t be treated as a legal text, but clearly a majority of the actual authors (the constitutional convention) thought it should be.

        1. Well, perhaps I needed “/sarc”.

      3. “Same logic applies to me remark on having an amendment process.”

        That’s no logic at all. There is no rational reason for the mere existence of the supremacy clause and the article on the amendment process if the constitution wasn’t intended to be a legal text.

        1. Yes yes yes

          /sarc
          /sarc
          /sarc

          How many whooooshes have you heard today?

      4. Remember, in a slighting way, your remark touches on the truth. But you apparently don’t notice that with, “no more significance than the rest of it,” you need to adjust the notion of “significance” to the scale of a decree from an all-powerful sovereign, for the purpose of constituting all government, backed by unlimited power. Other than that, yeah, no more significance.

      5. It’s not written like a “series of thoughts and suggestions and brainstorming ideas.” Your description brings to mind Thodoric of York, Medieval Delegate.

        It reads as if it were precisely constructed, with each phrase struggled over.

  3. More propaganda to undermine the Constitution.

    YES, the Founders expected government to abide by the Constitution. The Founders were also very pragmatic and understood that if decent people did not go into the government and decent people were apathetic to government tyranny, the USA would be right back where it started.

    They had a solution. Overthrow the tyrannical government with all the Arms that the citizens should have at their disposal. Then start a new Republic under the Constitution.

    1. Yes, if you assume the only way the Constitution has any power is originalism, everyone else sure does look bad!

      And then throw in some Civil War thirst just to show your bona fides.

      Sheesh.

      1. Yes, if you assume the only way the Constitution has any power is originalism, everyone else sure does look bad!

        Sure, why should the meaning of a law be limited to having the effect it was meant to have by those who enacted it? Then to change its meaning we need to amass huge popular support for the changed meaning. Much easier just to cut through all the red tape and have the judiciary change the meaning to one that seems preferable to them, regardless of whether the original law would ever have been enacted with the changed meaning

    2. Oh God, I forgot you have this troll here.

      1. I’m not a troll. I sincerely disagree with you. Crazy but true!

    3. More propaganda to undermine the Constitution.

      Prof. Baude, at Balkinization (which, in a better world, might merge with the Conspiracy), describes the Gienapp book as “deep and important.”

      A series of confident faux libertarian commenters, however, know better.

    4. And then THIS troll.

    5. Then start a new Republic under the Articles of Confederation.

      FTFY

  4. “In Gienapp’s telling, the framers did not agree that the Constitution was a written legal text,”

    If an accurate summary, that is just gibberish.

    What else could a Constitution be?

    1. Let’s ask the British.

      Thus the term “UK constitution” is sometimes said to refer to an “unwritten” or uncodified constitution.

    2. Bob, the usual answer is that a constitution is a sovereign decree, made at pleasure, and announced for the purpose of constituting a government.

      1. A Constitution is a legal document that once promulgated (yes, by the sovereign) binds everyone just like a statute.

        Call it a super statute or a contract, its a legal text.

        1. The Constitution’s language suuucks if it’s an attempt at a statute.

          1. It’s language actually suggests it’s a statute (or maybe a collection of statutes) go re-read the supremacy clause. The constitution is a law.

            1. How does being supreme mean you gotta be a law?
              It’s imprecise but sweeping language belies mere statutory utility.

              Heck, McCulloch is a contemporaneous rejection of that idea.

              1. Doesn’t mean, as the OP notes, that there aren’t good reasons to be originalist nevertheless. Or to be originalist but not via the ‘Constitution as statute’ logic.
                But the Constitution doesn’t look like the laws of the time, shouldn’t that mean something?

              2. The supremacy clause doesn’t just say that the constitution is supreme, it explicitly says that it is law.

                This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

              3. How can you be the supreme law of the land, and yet not be law?

                I mean, you’re being desperately absurd here.

                1. Really? You don’t see how law of the land is a term of art and not the same as a statue, given the evidence of the language used?

                  Next are you going to tell me that a punishment is OK if it’s cruel but not unusual?

                  1. e.g Supreme Court rulings are the ‘law of the land,’ but they are not statutes by any stretch.

                  2. Next are you going to tell me that a punishment is OK if it’s cruel but not unusual?

                    The eighth amendment prohibits cruel and unusual punishment. I has to be both. About that there is no controversy.

                    Really? You don’t see how law of the land is a term of art and not the same as a statue

                    ‘Law’ and ‘statute’ are not synonymous.

                    1. 1. swood1000, do you know what a term of art is?

                      2. Glad you agree with me! Take it up with MatthewSlyfield and Brett Bellmore.

                    2. 2. Glad you agree with me! Take it up with MatthewSlyfield and Brett Bellmore.

                      Bellmore said “yet not be law” and you equated this with saying “not the same as a statue.” Doesn’t this equate ‘law’ with ‘statute’?

        2. . . . binds everyone just like a statute.

          Binds everyone but the People, that is, when they act in their joint sovereign capacity.

          1. Only when they act through the amendment process.

            1. No, Slyfield. The government is bound to act through the amendment process. The People are not constrained at all. If they were, they would cease to be sovereign, and whatever had the power to constrain them would become sovereign in their stead.

  5. What’s the point?

    “Blabbity blab blab” and therefore those in power should be able to increase their power without the deliberately laborious process of getting the official approval of most people?

    Sorry, no.

    1. Make that: Hell No!

      1. Are the flags with fringe the ones that can be ignored by sovereign citizen American patriots, or is it the flags without fringe?

        1. Burn it for all I care. It is a feee country. I’d be a proud, card-carrying member of the ACLU, 1970s-80s era. Nowadays, not so sure.

  6. Professors Gienapp and Baude struck paydirt with this one. The more they dig, they more high grade ore they promise to turn up. Of particular interest will be the first presidents, including at least Washington through Jefferson?with Washington being notably the most important. Appropriate initial analysis will be historical, not legal. Then the constitutional lawyers will get to ruminate on whatever the historians turn up, and on implications for their own profession.

    As a pre-taste, anyone who wants to see specific instances of post-ratification constitutive power at work can find instances cited in historian Ron Chernow’s biography of Washington. In several instances, Chernow shows Washington not only mindful of gaps in constitutional meaning, but also conscientious that policies he chose?as examples on first impression?would tend by implication to elucidate meanings to fill those gaps for posterity?and for that reason, requiring extra care from Washington.

    As a suggestion to both, I urge also a systematic look at various founders’ views on popular sovereignty?with an eye to anything said to imply constitutive effect from continuous operation of sovereign power. On that point, to the usual roster of leading-founder-suspects, I suggest adding James Wilson and John Marshall, at least. Then, also, pre-revolutionary Ben Franklin. Together, those could prove another rich vein from the same lode.

  7. Has anyone played Peter Suber’s game “Nomic” ( described at http://tiny.cc/nomic )?

    Both Madison (in Federalist #39) and Hamilton (in Federalist #78) asserted “the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness”, yet Madison’s pointed text (“That the people have an indubitable, inalienable, and indefeasible right to reform or change their Government, whenever it may be found adverse or inadequate to the purposes of its institution”) never made it into the final draft of the Constitution. Amendment is possible yet adherence is expected and we are left to determine for ourselves under what conditions amendment should occur.

    Accordingly, I agree with Baude that ” Our current law tells us to adhere to the framers’ law, as lawfully changed. […] Originalism is fundamentally a theory of legal change, not one of stasis. The Constitution’s meaning can change if it changes in a lawful way, such as through a constitutional amendment.”

    1. Played Nomic decades ago. One guy had us vote on a change he wrote on a piece of paper, which we approved. Turned out he actually wrote, “I win!”

      Fun ensued.

      If the people, long past, gatewayed changes to give government more power so the power hogs can’t simply assert, “I win, forever!” then deference should be given to that principle.

      If The People want the government to do new stuff, and it is a good idea, most will think so, not just a bare majority, and will think so 5 years from now, not just while passions are hot.

  8. Of course the founders were originalists: Basically nobody writes a text, carefully crafting each word, in the hope that the readers will toss their work aside, and pull a meaning out of where the Sun don’t shine.

    And that’s all living constitutionalism is: A rationalization for tossing the text aside, and declaring it means something you like, regardless of all evidence to the contrary.

    Originalism is just allowing language to function the way it’s supposed to function, nothing more. It didn’t even need a name until we needed to fight people who were rationalizing doing something different.

    1. Your binary view the issue gives it away. Turing test failed.

      1. Turing was a deviant who inserted his genitals into another man’s tuchis. I’m not sure I’d reference his test positively.

        1. You are as big a douchebag as Sarcastr0 and Rev Arthur L Kirkland, so most thinking people don’t care whether you would reference his test positively.

        2. You machines are getting easier and easier to spot as you become more predictable. Maybe go back and spend more time on tricking captchas.

        3. I’ve got to agree with QuantumBoxCat. The ad hominem argument certainly is no example of intelligent behavior.

      2. Turing was a deviant who inserted his genitals into another man’s tuchis. I’m not sure I’d reference his test positively.

      3. Your binary view the issue gives it away. Turing test failed.

        Is originalism not a binary question?

    2. As to your first sentence, the constitution was written, mostly by lawyers, with legal language.

      1. …that’s not legal language. That’s the rub, at least to me.

  9. Could someone give a Cliff’s Notes version for dumb clingers at me? What did the Founders imagine themselves to be doing when they dealt with constitutional issues?

    1. And what is the functional difference between having the Constitution we have and having a big enabling act for the federal government to pass whatever laws it wants?

    2. Eddy, the founders supposed they were exercising sovereign power at pleasure, to constitute a government.

      1. What does that mean in practice? That Congress can stop people from growing wheat or weed for their own use?

        1. I don’t see the pleasure in that.

  10. In Gienapp’s telling, the framers did not agree that the Constitution was a written legal text, that it was complete, that its meaning was fixed, or that it was subject to specific rules of legal interpretation.

    Gienapp claims that Madison’s view underwent a “dramatic transformation.” He insists that at the beginning Madison’s view was that

    So while the American Constitution was fundamental law, its meaning could change as future generations interpreted its uncertain contents.

    Whereas,

    Late in life, Madison, who had once disparaged “parchment barriers,” now complained that “the language of our Constitution is . . . undergoing interpretations unknown to its founders.”

    It would seem that a more reasonable explanation is that the former interpretation of his views is belied by his later statements. If a document is expected to have legal effect will those who agree to be bound by it be content to have that legal effect decided in the future by unknown people, who will have absolutely no firm fixed meaning to guide them? Such a system does not guarantee anything. Why would the ratifiers have opted for this?

    1. Gienapp’s characterization of Madison’s “parchment barriers” statement is borderline disingenuous. Madison wasn’t suggesting that the people should find their own meaning in the Constitution despite what might be written on some musty old parchment. He was expressing his concern that in practice the government might NOT follow what the Constitution said and instead violate the Constitution in following “popular currents.”

      1. Right. Gienapp points outs that the fact that Hamilton agreed with this:

        Massachusetts Reverend Samuel Stillman argued, “if this Constitution is as perfect as the sacred volume is, it would not secure the liberties of the people.” Because, he explained, “nothing written on paper will do this.”

        Gienapp claims this show that Madison believed that the Constitution “was something to be built as much as it was scripture to be honored,” whereas it clearly means that a Constitution that is not given effect, or is treated merely as words on paper (as for example in the USSR) it would not secure liberties. If a Constitution has no secure meaning then how could it gain the respect of the people and the courts?

        Also he quotes Madison’s remarks from Federalist 37:

        “All new laws, though penned with the greatest technical skill. . . are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”

        as if Madison was saying that all new laws are intended to be like putty in the hands of the judiciary, whereas he was simply saying that no law is so clear that disputes as to its meaning will not arise, obviating the need for a judiciary.

  11. There are two different questions that need to be answered but you only address one of them.

    First, were the framers originalists and does that matter.

    Second, was the framers original understanding that the judicial power should be exercised by divining original intent or looking to the original text.

    One can believe, as I do, that it’s the original public understanding that matters but that original public understanding was that the judicial branch would engage in an evolving interpretive practice and extend it’s rulings by analogy and a sense of justice in the same way the common law was developed.

  12. How could the Constitution not be a written text?

    1. Ask the Brits.

  13. Hamilton in Fed. 22 wrote that one reason for holding ratifying conventions was to clear up any ambiguity that a single state “might repeal the law by which it [the federal compact] was ratified.” Why would there be any great reason to ratify (or to repeal) a non-law?

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