The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp (review)

The Second Creation by Jonathan Gienapp is a remarkable book. Gienapp has done impressive original research, and he writes about complex matters with admirable clarity. He also powerfully makes the point that the Constitution, as it emerged from the sweaty Philadelphia Convention in September 1787, left a large number of core constitutional issues unresolved or ambiguous at best. Others have shared this view, but Gienapp drives it home in useful ways.

Though the constitutional ratification process in state conventions played an important role in Chief Justice John Marshall’s subsequent discourse on federalism and national power in McCulloch v. Maryland, the checkered history of these ratifying conventions hardly clarifies a number of important structural issues. Gienapp’s sophisticated and detailed study focuses on perceptions of the federal Constitution during the 1790s.¹ He probes constitutional discourse in the context of four intense controversies in the earliest years of the American Republic to illuminate the “constitutional imaginary” of leading governmental players when “the American Constitution was breathtakingly novel and, because of that, a profound unknown” (4).

To some, Gienapp’s claim that the “tumultuous decade” that followed state ratification in 1789 “did as much to mold the Constitution into what it became as anything that came before” will seem overstated (4). Nonetheless, his enlightening discourse is certain to enrich constitutional understanding, even among experts and certainly among members of the general public. Gienapp argues that the Constitution when ratified was “a profound unknown” which had breathtaking novelty; he devotes many careful pages to an astute analysis of the push-and-pull, primarily by members of the early Congresses, to fill in the blanks (4).

He focuses primarily on four congressional battles over constitutional questions: (1) whether the president possessed sole authority to remove executive officers, including those appointed with the advice and consent of the Senate; (2) whether constitutional amendments ought to be inserted into the existing text of the Constitution or to be included in a supplementary section; (3) whether there was adequate constitutional authority to charter a national bank; and (4) whether Congress had the power to demand information prior to implementation of the Jay Treaty.

The book makes many contributions, and it helps that Gienapp is attentive to imaginative possibilities— his term is “constitutional imaginaries” (10)—that powered early, intense debates at a time when it was not yet generally accepted that the Constitution itself was “fixed” or “locked in place” (19). Gienapp is a clear-eyed guide to debates in which “Federalists and Anti-Federalists punched and counter-punched so rapidly that it was hard for observers to see the debate whole” (76).

The debates about the extent of the powers of the Executive remain lively, and largely unsettled, to this day.² The little-known incorporation debate about James Madison’s proposal to intersperse amendments with the original constitutional text, which was unrealistic at best—though interspersing amendments might have enlightened future generations about what those who proposed new amendments believed such amendments actually entailed. Whether a bank charter was within the federal power articulated in “the sweeping clause”—as Article I’s Necessary and Proper Clause came to be called—evolved into a perennial battle, ultimately not settled until Chief Justice Marshall handed down his magisterial unanimous opinion in McCulloch v. Maryland. Marshall noted in McCulloch that even earlier opponents—making an obvious reference to James Madison—had come around to supporting broad federal power to charter a national bank. And, if anything, President Washington’s embrace of the Executive’s broad treaty-making power has prevailed in the courts as well as apparently in public opinion ever since.³

Unsurprisingly, it is James Madison’s speeches that often are at the center of Gienapp’s analysis; Gienapp justly celebrates Madison for his sophistication, including with a specific focus on Madison’s Federalist 37 and his “incisive examination of language,” including Madison’s discussion of “epistemological uncertainty and the frailty of...