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The Second Creation: Fixing the American Constitution in the Founding Era
A stunning revision of our founding document’s evolving history that forces us to confront anew the question that animated the founders so long 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.
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.
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First published October 9, 2018
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Displaying 1 - 6 of 6 reviews
September 22, 2024
A frustrating read. Gienapp amasses tomes of historical evidence to defend a novel theory of Constitutional fixity (or lack thereof). But if you just read the quotations closely, it quickly becomes clear that Gienapp’s reading is implausible and that he is imagining contradictions and tensions where there are none. I finished each chapter more and more persuaded by the very theory he tries to disprove. If this is the best historical challenge to constitutional originalism, then originalist should sleep soundly knowing they are winning this debate handily.
June 10, 2024
The topic is of interest: given that today the Supreme Court is interpreting the constitution on the basis of the founders' intents. What were the founders' opinions on this. In particular, how did they behave?
The book tries to answer this question by examining the constitutional issues that came before the first and fifth Congresses. Since the constitution was new, they were forced to spend time deciding exactly what it meant, and indeed they did. The first Congress spent their first two months just debating a constitutional matter when things like debts were festering and taxes were going uncollected. That's how important they saw these matters.
The particular events/questions the book addreses:
1. Who had the power to fire department heads, the president, the president and senate, nobody, or something else?
2. Should amendments be added to the end or incorporated into the text? Was the original constitution (at that time only two years old) more of a living document or a sacred text? (That they opted for the sacred text idea has probably meant that it has not evolved as much as it might have. My own thought, not addressed in the book, is that on the other hand, interpolating texts probably would have been too difficult to propose to the public).
3. Was the government constitutionally able to incorporate a national bank? An interesting little point here is that the failure of the anti-bank forces led them to start the doctrine of popular opposition to the government, which led to the Jay treaty opposition, political parties and the Virginia and Kentucky Resolutions, which later influenced southern separatists. A lot of the way subsequent history developed came out of these early struggles when antagonists reached for whatever weapons that came to hand in attempting to win their struggles. Not that those kinds of developments wouldn't have come later anyway, but their origins are noticeable already here.
4. Did the House have any role to play in foreign treaties? (Jay treaty)
Unfortunately, the writing is very wordy and repetitive. Repeatedly, especially when a bunch of contemporary quotes are being cited, one wants to shout "Get on with it already!". It's important that arguments be solidly based on sentiments actually expressed, but quite prosaic to have to read through all of them. Maybe if all the quotes had been placed in optional to read side panels.
I recommend merely skimming the first two chapters, which set up the context and scene, for otherwise you may not finish the book at all. Only in chapter 3 does it become something that people other than constitutional lawyers want to read. Even then, there are far too many unnecessary words. As just a simple example, every time it mentions Senator William Maclay it cannot resist saying "the irascible William Maclay". We got it the first time. At least this one is only a single word. Elsewhere there are long clauses that could easily have been omitted because all they're doing is restating what was said in a previous paragraph.
There are also a lot of little things left out. Imagine spending a whole chapter on the bank controversy and never mentioning the famous meeting in the room where it happened. This is just one example. It also never mentions how Hamilton sabotaged the Jay treaty, or even the unconstitutionality of the Chief Justice taking on a second office as Envoy. But these are mere quibbles.
The conclusions suggest that today's constitution is mostly seen as fixed rather than flexible, which seems to suggest that the latter might be an option. I don't think it's only because that's what we're used to is the reason it's that way though. Human nature has played its role.
The idea of the book is great. The individual topics are interesting. In examining debates, it has the clever idea of examining what both sides are taking for granted and using this to chronicle undeniable changes in understanding, separate from the points of view. It also points out the danger that a constitution has to be based on words, but the meanings of words can change over time. But the book is also quite long and the writing style leaves a lot to be desired.
The book tries to answer this question by examining the constitutional issues that came before the first and fifth Congresses. Since the constitution was new, they were forced to spend time deciding exactly what it meant, and indeed they did. The first Congress spent their first two months just debating a constitutional matter when things like debts were festering and taxes were going uncollected. That's how important they saw these matters.
The particular events/questions the book addreses:
1. Who had the power to fire department heads, the president, the president and senate, nobody, or something else?
2. Should amendments be added to the end or incorporated into the text? Was the original constitution (at that time only two years old) more of a living document or a sacred text? (That they opted for the sacred text idea has probably meant that it has not evolved as much as it might have. My own thought, not addressed in the book, is that on the other hand, interpolating texts probably would have been too difficult to propose to the public).
3. Was the government constitutionally able to incorporate a national bank? An interesting little point here is that the failure of the anti-bank forces led them to start the doctrine of popular opposition to the government, which led to the Jay treaty opposition, political parties and the Virginia and Kentucky Resolutions, which later influenced southern separatists. A lot of the way subsequent history developed came out of these early struggles when antagonists reached for whatever weapons that came to hand in attempting to win their struggles. Not that those kinds of developments wouldn't have come later anyway, but their origins are noticeable already here.
4. Did the House have any role to play in foreign treaties? (Jay treaty)
Unfortunately, the writing is very wordy and repetitive. Repeatedly, especially when a bunch of contemporary quotes are being cited, one wants to shout "Get on with it already!". It's important that arguments be solidly based on sentiments actually expressed, but quite prosaic to have to read through all of them. Maybe if all the quotes had been placed in optional to read side panels.
I recommend merely skimming the first two chapters, which set up the context and scene, for otherwise you may not finish the book at all. Only in chapter 3 does it become something that people other than constitutional lawyers want to read. Even then, there are far too many unnecessary words. As just a simple example, every time it mentions Senator William Maclay it cannot resist saying "the irascible William Maclay". We got it the first time. At least this one is only a single word. Elsewhere there are long clauses that could easily have been omitted because all they're doing is restating what was said in a previous paragraph.
There are also a lot of little things left out. Imagine spending a whole chapter on the bank controversy and never mentioning the famous meeting in the room where it happened. This is just one example. It also never mentions how Hamilton sabotaged the Jay treaty, or even the unconstitutionality of the Chief Justice taking on a second office as Envoy. But these are mere quibbles.
The conclusions suggest that today's constitution is mostly seen as fixed rather than flexible, which seems to suggest that the latter might be an option. I don't think it's only because that's what we're used to is the reason it's that way though. Human nature has played its role.
The idea of the book is great. The individual topics are interesting. In examining debates, it has the clever idea of examining what both sides are taking for granted and using this to chronicle undeniable changes in understanding, separate from the points of view. It also points out the danger that a constitution has to be based on words, but the meanings of words can change over time. But the book is also quite long and the writing style leaves a lot to be desired.
July 3, 2025
Four stars for the important topic. Two stars for execution that makes it absolutely unwelcoming to non-Constitutional scholars. Way too wordy/repetitive. Biggest takeaway is that the Framers tended to take up interpretations of the constitution that allowed them to take whatever political position they gravitated towards. In other words, today’s originalists are just as inconsistent/hypocritical as politicians in the 1700s.
October 24, 2019
A very interesting discussion of the First Congress. Definitely an academic read but I learned a lot about how the first Congresses dealt with the Constitution. That said I think the book isn't as dire for originalism as it thinks. Still, if you are curious about the Constitution's early history, there's a lot of good info in here.
July 2, 2024
An exploration of how the founders had to struggle with the concept of what a constitution was in order to write one and later to govern under one. Useful for expanding one's imagination about how we should interpret the Constitution and what alternative ways of operating are possible.
December 16, 2022
This is one of the best books on the writing and adoption of the United States Constitution. More importantly, it takes into account the divisive issues that confronted the First Congress of the United States. Issues such as the ability of the President to remove an executive department head, delegated v. implied powers, the Jay Treaty, and many more subjects are covered in this book. One finishes it with a clearer understanding of what the First Congress had to plow through in order to finalize the existence of a new government. In retrospect, how does a written constitution akin to a blueprint for government actually work? Gienapp provides the answers but his analysis also prods the reader to look at the issues that our government and society have to confront today. Can we learn anything from the members of our first legislature under the Constitution? Hopefully we can and from there we can construct an even better government of the people, by the people, and for the people. Read this book to get enlightened.
Displaying 1 - 6 of 6 reviews