- The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp
Largely thanks to law professors and judges, the doctrine of originalism has been a well-known and potent force in American legal and constitutional discourse since the 1980s. All of the variant strains of the doctrine fixate on the language of the United States Constitution, as ratified in [End Page 564] 1788, as the operative source for discovering the document's true meaning. Historians, most notably Jack Rakove in his Pulitzer Prize-winning work, Original Meanings: Politics and Ideas in the Making of the Constitution (New York, 1996), have pushed back against the notion that there were fixed meanings of the Constitution as of the time of the ratification that judges should adhere to when determining the constitutionality of a given law or other state action. The "original meanings" were murky; not long after ratification of the Constitution, even some who had a hand in framing the document were unsure about, or divided over, how to interpret language they had adopted a scant few years earlier. Knowledge of those early debates among people who should have known the answers, if there were set answers to be known, is evidence against the idea that the meaning of the Constitution was fixed at the time of the Ratification.
Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding enters this discussion of how best to interpret the Constitution by reiterating that the Constitution "was not fully created when it was written or ratified" (3). Indeed, he argues, "the Constitution was born without many of its defining attributes; these had to be provided through acts of imagination" (4). The word "imagination" may set off alarm bells among those who style themselves as guardians against a too-expansive view of what is allowable under the American Constitution. How far can our "imaginations" take us? Are there no boundaries? How one views "imagination" in the context of constitutional interpretation is probably a matter of personality; one may be excited or fearful about the idea.
On the question of imagination, and how assumptions about the 1788 Constitution limit ours:
Reimagining the conventional story of the constitutional creation requires first reimagining the original Constitution. It necessitates bracketing present assumptions and returning to a time when the American Constitution was breathtakingly novel and, because of that, a profound unknown—when not only it's meaning but also its core characteristics were deeply uncertain.(4)
"Uncertainty" is not a term typically associated with the work of the framers, who too often live in the popular mind as having always known exactly what they were doing, with intentions that are easily discernable. Gienapp, however, uses this early uncertainty about the Constitution to [End Page 565] show how, during those early years of debate and contention that Rakove and so many others have described, people came to believe that it should be seen as "fixed." When the first Congress met in 1789, and had to deal with matters on which the Constitution could be described as "unfinished," legislators looked to The Federalist Papers, their own memories of arguments during the Constitutional Convention, and what they had heard had been said in the Convention. This first act of looking to the past suggested that a fixed meaning could, in fact, be found there. But it was during the tumultuous 1790s, "in the context of political combat" (334), during debates about how to interpret the Constitution—in Congress and cabinet meetings—that the process of seeing the document as having "fixed" meanings reached its apotheosis. In the wake of the development of political parties that vied for power in the new republic, the Federalists saw the Constitution as "fixed" in ways they preferred and the Republicans saw it "fixed" in the ways they wanted. For both, this was an exercise in imagination—competing imaginations, actually—that would neither have been possible or necessary if the text as written had been as...