- The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp
It seems appropriate for a book about the indeterminacy of constitutional language that the most ambiguous word in the title of The Second Creation: Fixing the American Constitution in the Founding Era is not the more obviously protean fixing but rather the easily overlooked second. The word it modifies—creation—is possibly the most frequently used word in titles of books about the Constitution in the years 1787–89, which witnessed its writing and ratification. But Jonathan Gienapp argues that our reflexive tendency to cordon off these years as the period of creation and to sharply demarcate everything that follows as the era of interpretation is itself a product of a particular constitutional imaginary cultivated by political debates that followed ratification. By the end of those debates, which Gienapp describes in incredibly rich detail, the familiar and tidy division has been set: "creation" ended in 1789 and what follows is the rest of American history, in which our charge is merely to interpret, and adhere to, the prescriptions of the Constitution. After 1789, the Constitution became almost an inert text, safely archived in glass, defined by its words, whose safest meanings could be discovered by historical excavation of the time-bound intentions of its well-known authors, "the Founders." But this Constitution, Gienapp argues in a remarkable twist, was itself an "invention" not of the writing and ratification but of the subsequent years of political struggle in the 1790s. In other words, this "second" creation actually gave us the Constitution as we imagine it now, meaning that the "second" creation of the title is really in some sense the first after all.
But if that is so, what kind of thing was the Constitution in 1789? The surprising finding of this book is that the members of the First U.S. Congress quickly discovered that they did not know. This would not have surprised James Madison, who had written in January 1788 in Federalist no. 37 that "all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." But it does surprise those of us who operate within the confines of the constitutional imaginary that became entrenched, because its naturalization strains our ability to see the political battles of 1789–96 as efforts to figure out what the Constitution was. For the foundational premise of this book is that many of what we now take to be the Constitution's "essential attributes"—that it is a legal instrument "defined [End Page 806] by its textuality" and "enclosed within its words" (7)—were not features of its drafting and ratification. The congressional debates of the 1790s, in this account, were not necessarily about interpreting and implementing a text. They were arguments about whether the Constitution should be envisioned exclusively as a text at all. This was not yet, Gienapp tells us, "a time of ordinary politics" (162), which I take as an oblique nod to Thomas S. Kuhn, for whom "normal science" was "predicated on the assumption that the scientific community knows what the world is like."1 Gienapp's book is an effort to demonstrate both how the founding generation—and, by implication, those of us living in the era of the "second creation"—came to know what the Constitution was like and how it came to be imagined as "complete," with a "fixed" (10) meaning (however difficult extracting that meaning might sometimes be). It historicizes our own constitutional imagination; it is, for this reason, a disorienting and discombobulating book.
It is also a book that must be worked through. Everything is laid out in the introduction, but understanding it requires careful attention to what Gienapp himself is paying attention to. And this is probably a good place to note something that...