The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.