AuthorGlass, Maeve

THE SECOND CREATION: FIXING THE AMERICAN CONSTITUTION IN THE FOUNDING ERA. By Jonathan Gienapp. Cambridge: Belknap Press. 2018. Pp. 464. $35.


The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders' dictionaries and legal treatises. (1) In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China (2) to the rights of a legal permanent resident facing deportation. (3) And yet, in this age when big data promises to solve potential challenges of interpretation (4) and judges have for the most part agreed that original meaning should at least count for something, (5) a historian named Jonathan Gienapp (6) in the Stanford University History Department has returned from the archives with a paradigm-shifting proposition. Not only were the intentions of the drafters of the Constitution diverse, as scholars have long recognized. (7) Not only were the meanings of their chosen words uncertain, as others have since emphasized. (8) Instead, the very thing that we might think of as the U.S. Constitution simply did not yet exist in that storied moment when ink met parchment and we the people said aye.

In what may be the first attempt by a historian to pair H.L.A. Hart's concept of law with a philosophical theory of language to examine the formation of the U.S. Constitution, (9) Gienapp invites readers to set aside familiar notions of a Constitution whose identity as a closed, textual object was settled through the solemn act of ratification. Instead, as he argues in his award-winning monograph The Second Creation: Fixing the American Constitution in the Founding Era, the requisite consensus as to what type of object the Constitution was and how it ought to be interpreted emerged only over the course of the 1790s. This crucial second phase of creation unfolded not in the courts or in the streets, but in the halls of Congress. It is there, Gienapp tells us, that a radically indeterminate object transformed in the minds of America's politicians into the fixed written Constitution that pulses through the courts today: a transformation propelled by a series of political debates and the very human need to ask for and give reasons.

Since this provocative thesis appeared last fall, it has generated a good deal of attention within the legal academy, (10) much of it focused on parsing the book's implications for originalism. (11) But as this Review argues, the book's significance extends well beyond the narrow question of whether its claims are sturdy enough to revise dominant modes of constitutional interpretation. Instead, situating the book's profound contributions in historiographical context reveals that The Second Creation represents an equally significant methodological departure from prior scholarship, one that in turn invites a broader conversation about the modes and stakes of writing American constitutional history today.

Although one might be hard-pressed to tell from the reception that the book has generated thus far, The Second Creation marks a subtle but deliberate shift away from historiographical currents. Since at least the 1960s, a dominant trend in the field of early American history has been the expansion of the archive for the study of the formation of the republic, as social and cultural historians have pushed beyond the temporal and spatial boundaries that once confined the archive of America's founding to the summer of 1787 in Philadelphia. Beginning in the early twenty-first century, historians of the Constitution built upon this expanded archive to situate the project of constitution-making within a transatlantic context, producing articles and monographs that collectively illuminated the centrality of imperial structures of governance and race-based slavery. In doing so, this scholarship invited us to see 1787 not as the grand finale of an exercise in political theory, but as part of a longer historical continuum featuring a Constitution whose roots stretched into the colonial past and whose twisting, arching branches extended far into a future defined by the aspirational search for an America of coequal rights. (12)

With an appreciative nod to this body of literature (pp. 12-13), The Second Creation charts a different course. Explicitly bracketing the broader archive of empire and slavery that has guided much of the recent literature (p. 13), The Second Creation instead focuses on the microdynamics of congressional debate within the first decade of the Constitution's existence. Enlisting the help of philosopher Robert Brandom's theory of the production of authoritative standards (pp. 9, 343 n.13), Gienapp peers through a high-resolution microscope to examine in exquisite detail the movement of constitutional arguments as they ricocheted around the halls of Congress. Working from this vantage point, Gienapp unearths a previously overlooked trajectory of constitutional development. Whereas recent scholarship has emphasized lines of continuity, Gienapp instead finds evidence of a rapid transformation in constitutional understandings, as the intensity of political debate in Congress closed off possible avenues of constitutional meaning and reified a particular conception of the Constitution as a textual, archival artifact frozen in time and space (p. 11).

Placing The Second Creation in historiographical context thus raises a basic, and as yet unresolved, set of methodological questions: Where in the vast debris of the past should historians look for the story of the making of America's Constitution--and what are the prospects for reconciling the multiple creation narratives that now define the field? As this survey suggests, depending on how one defines the relevant units of constitutional time and space, the story of America's creation may look very different. Focus on the political debates in Congress that serve as the primary object of study in The Second Creation, for example, and one may well find evidence of a rapid transformation in constitutional understandings among America's politicians. Shift the frame outward to examine the daily practice of law in eighteenth-century America, and one may instead find evidence of constitutional continuities, in a land where entrenched material realities, enduring ideologies, and preexisting legal institutions limited the scope of possibilities as to what the Constitution could become in 1787, (13) while allowing the laws and atrocities of slavery to flourish for generations to come.

By illuminating the acts of archival construction that underpin these constitutional narratives, this Review offers a conceptual framework for synthesizing the seemingly disparate founding stories that now populate the field of American constitutional history. In particular, this historiographical survey invites us to conceptualize constitutional time not as a single linear sequence of events, but as a composite of multiple, coexisting time horizons, each with its own rate of change. (14) As a return to the sources that constitute the archive of The Second Creation suggests, even in moments of uncertainty among the Constitution's first interpreters in Congress, it is possible to discern evidentiary traces of an older, more stable world, defined by shared understandings of modes of constitutional interpretation and rules of partnership. From this composite perspective, it may well be that the relatively rapid transformation in constitutional imaginations that The Second Creation uncovers between 1787 and 1796 coexisted alongside the glacially slow-moving and brutally stable set of customary rules of governance that others have excavated in an American age of conquest and enslavement.

In the end, then, The Second Creation provides not only a novel approach to the study of constitution-making. It also invites us to grapple with the question of whose stories are cut, whose voices are added, and how the picture of the Constitution changes when one adjusts the frame. Perhaps most consequentially, reading The Second Creation against the broad sweep of scholarship that preceded it allows us to broaden the terms of the now-familiar debate as to when and to what degree the Constitution became fixed in meaning for purposes of constitutional interpretation. This contextual reading suggests the value of acknowledging the multiplicity of America's constitutional past(s), while taking seriously the normative stakes of what it means to be bound to a historical moment defined not simply by debates about the rules of constitutional interpretation, but also by widespread agreement that the Constitution, however unsettled its ontological nature may have been, sanctioned the laws and daily atrocities of slavery in these united states.

To see these stakes, this Review begins with a brief overview of the field of American constitutional history as it has developed in recent decades, identifying a determined effort to expand the archive of sources beyond the temporal and spatial boundaries of Philadelphia in 1787. The Review then turns to the making of The Second Creation, tracing the book's analytical moves to reveal the novelty of its approach as well as its findings. From there, the Review concludes by returning to the sources and suggesting an analytical framework that can accommodate these different archives of America's Constitution, while opening the door to future paths of inquiry.


    The story of the contemporary writing of American constitutional history might well begin at Harvard in the early 1960s, when a young graduate student named Gordon S. Wood completed a dissertation that would prove to be of enormous influence. (15) At the time, scholarship on the origins of the Constitution had...

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