Our inevitably living Constitution

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

No one in the future can be considered a literate commentator on the history of the Constitution and American constitutional development who has not carefully read and reflected on Jonathan Gienapp’s stunning book The Second Creation:  Fixing the American Constitution in the Founding Era.  The title itself is extraordinarily rich.  It requires us to stop regarding the Philadelphia Convention, or even the various state ratifying conventions, as the singular moment (or even moments) of “creation” of the Constitution (whatever exactly that might be thought to mean).  They were important, to be sure, but Gienapp is convincingly insistent that the Congress that convened in 1789 and made crucially important decisions for several years thereafter (including, for example, responding to the Jay Treaty of 1795) played an essential role in “fixing” the Constitution.  

There is a quite self-conscious (at least) double entendre in the use of the word “fixing.”  One might view it as recognizing that certain (inevitable) deficiencies in the text and understandings that were present in 1787-88 were “fixed” and repaired by new and improved renderings of constitutional meanings given by the legislators thereafter.  But there is also, crucially, the development of a notion of a Constitution that becomes “fixed” and therefore made unchangeable (save for the near-futile path of constitutional amendment set out by Article V).  A word that Gienapp uses throughout his book is “textualized”; that is, the Constitution is transformed from a set of quite inchoate understandings, similar in their own way to the fluidity attached to the notion of the British “constitution,” into a specific text that is itself thought to provide firm answers to the dilemmas of actual governance that quickly emerged after the new government got up and running in the spring of 1789.  There is, of course, yet a third meaning of “fixed” that is available, as when people speak of “fixing” their dogs or cats, by which they mean neutering the animals and making it impossible for them to generate a next generation of puppies or kittens.  I shall note below the implications of this third notion of “fixing” the Constitution, which is in fatal tension with the far more dynamic view of American constitutionalism enunciated by John Marshall in what remains the single most important opinion in our history, McCulloch v. Maryland.  

            The central thesis—and indispensable contribution—of the book is announced in the Introduction:  “How a wide swath of the American political community imagined the Constitution when it was written in 1787, or [even] when the federal government first gathered under its auspices in 1789, was quite different from how that community imagined it a decade later” (p. 9).  I would add that Gienapp’s assertion makes hash not only of those who fixate on the conventions in Philadelphia or the various state capitals (plus Poughkeepsie, the surprising locale of New York’s ratifying convention), but also of those who believe, say, that The Federalist, written during this same period by highly motivated partisans of constitutional ratification, offers some specially privileged insight into constitutional meaning.  Whether or not we agree in full with Aristophanes that (at least sometimes) “whirl is king,” we should recognize that he is a better guide to American constitutional development, even (or especially) in its formative period, than are those who believe that there were necessarily “fixed” meanings of the Constitution in 1787 or even 1790, when the final state, Rhode Island, got around to ratifying the Constitution.  (Its approval was by the less-than-inspiring vote of 34-32, and one might surmise that the crucial two votes that precluded yet another rejection by Rhode Islanders was the fact that Congress was threatening to pass a law prohibiting commercial intercourse with the juridically “foreign country” of Rhode Island. So much, incidentally, for the Lincolnian theory that the United States had been a singular entity since 1774, let alone the Declaration of Independence in 1776--the four-score-and-seven-years prior to 1776.  Wherever exactly Rhode Island was prior to ratification, it was not within the United States of America.

Of course, one should not go overboard with the reference to Whirl or the “indeterminacy” of the original Constitution.  What I have elsewhere termed the “Constitution of Settlement,” involving such things as the two senators assigned to each state (alas), or the length of presidential and congressional terms, might indeed have been fixed on September 17, 1787, when the delegates, save for Randolph, Gerry, and Mason, signed the text that was then delivered to the country at large for ratification under Article VII.  And that all-important Article, which has disappeared from what might be termed the “pedagogical Constitution” taught to youngsters, was itself importantly “fixed” inasmuch as it fully repudiated the seemingly fixed rule laid down in Article XIII of the Articles of Confederation regarding requirements for amendment, and replaced it with the all-important proviso that ratification by only nine conventions, rather than all state legislatures, would be enough to breathe life into the proposed Constitution.  The dreaded Rhode Island veto, relied on by the hapless leaders of that state when they refused to send any delegates at all to Philadelphia, was no more.  George Washington took his oath of office on April 30, 1789, to become Chief Executive of a nation that at that time did not include either North Carolina or Rhode Island. This facet itself of the Constitution forces us to realize that “fixity” may be a sometime thing, though, tellingly, the defense of Article VII must take the form either of an Ackermanian justified illegality or, as argued instead by his colleague Akhil Reed Amar, an assertion that the “confederation” announced in the Articles, including the strictures of Article XIII, had in effect been dissolved by the utter failure, for example, to elicit sufficient tax revenues through the politically disastrous “requisition” system that was the equivalent of sending out letters begging for contributions that would in fact not be forthcoming. 

            But, of course, members of the new Congress, and Washington as well, were not arguing about the meaning of the Constitution of Settlement; he might have argued that his term expired on April 30, 1793, four years after he took his initial oath of office, but he accepted the understanding that the new country had in fact first sprung to life on March 4, 1789 when Congress first convened. Whether that was a “required” understanding of the Constitution might make a nice exam question, but his acceptance of March 4, to use a Madisonian term, “liquidated” any possible controversy over the end-date of the presidential term, which remained until changed by the 20^thAmendment in 1933.  Rather, the disputes were about what I have termed the complementary “Constitution of Conversation,” the Constitution that, for better and worse, is the subset of the overall Constitution that legal academics and the judiciary obsess about. Consider that the Constitution clearly requires that Congress confirm high-level executive branch officials; even if one might wonder today how it is that presidents appoint National Security Advisors and other truly significant officials without such confirmation, that was not an issue facing the initial officials charged with figuring out the practical implications of the new Constitution. What did concern them was what happened if the President wishes to dismiss (or “remove”) a confirmed official.  Did Congress retain a right, derived from its confirmation power, to veto a possibly impetuous President?  Or are all executive branch officials in effect employees at the Chief Executive’s legally untrammeled will?  This is both highly interesting theoretically and also of significant practical importance.  To accept the latter notion is to adopt a significant more “monarchical” view of presidential authority than is entailed by the former, in which Congress retains a possibly decisive role in determining who exercises at least some facets of executive power.  Not surprisingly, removal was the subject of perhaps the first “great debate” in the history of the U.S. Congress, where by one vote, that of Vice-president John Adams breaking a tie in the Senate, the President (in this case George Washington, of course) was given the unilateral power to say “you’re fired.”  Interestingly enough, this decision flew directly in the fact of Publius’s assurance in Federalist 77 that “the consent of the Senate would be necessary to displace as well as to appoint.”  Not to worry, though, for a note from Alexander Hamilton, known by then, at least among the cognoscenti, to be one of the authors of The Federalist, indicated that he had “changed his opinion” and had become “convinced” that the president should indeed have the “power of removal at pleasure” (p. 155).  As Gienapp writes, this episode only demonstrated the extent to which the Constitution was being treated “as an object of [interpretive] freedom rather than of constraint” (id.).  Whirl was indeed king.  

            This heady notion of openness to what Habermas might term the force simply of the stronger normative argument—i.e, which interpretation of the Constitution was in fact best for the country?—would shortly be supplanted by an emphasis on a more “fixed” Constitution that would ostensibly constrain otherwise exuberant legislators.  The bulk of the book is devoted to demonstrating the various ways in which this occurred.  Chapter Four is entitled “The Sacred Text.”  In my own first book, I distinguished between “catholic” and “protestant” notions of what might be called, using Gienapp’s own terminology, constitutional ontology.  For constitutional “catholics,” the Constitution might include a text, but it also included, at least as importantly, the teachings of the magisterium collected in the institutional Catholic Church, just as for all but Karaite Jews, the authoritative materials include both written and unwritten sources; protestants (or Protestants), of course, believed in the maxim sola scriptura.  For whatever reason, including, perhaps, the importance of Protestantism in American culture, the appeal to a “sacred text” won out, whatever the obvious problems, well delineated by Gienapp, of believing in the reality of self-sufficient texts.  

As always, James Madison plays an important role in the narrative. He was the author of Federalist 37, a stunning essay that emphasizes the limits of textual determinacy.  Surely one of the most remarkable sentences not only in The Federalist, but in all American political thought, is Madison’s statement that “[w]hen the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful, by the cloudy medium through which it is communicated” (p. 110).  By the time he was opposing the Bank of the United States promoted by his former ally, and now bitter enemy, Alexander Hamilton, the Constitution was becoming less “cloudy” and, Madison alleged, clearly adverse to Congress’s power to charter the Bank.  Needless to say, one can wonder whether this later position was the result of Madison’s theoretical reflection on the nature of language or, instead, the product of what we today would call “motivated reasoning,” in which political goals (such as blocking Hamilton’s vision of a commercial republic) led to seemingly different positions from those taken earlier.  

            Gienapp is truly gifted in delineating a number of early political disputes in which constitutional arguments became central. They certainly included, but are not limited to, the debate over dismissal of executive officials; the chartering of the Bank of the United Sates, and the Jay Treaty.  Not at all coincidentally, these debates also served to bring onto the scene the reality of political parties that Madison and others had hoped to forestall by creating a constitutional order that would rely on basically virtuous political leaders thinking only of an abstract public interest. Although, as Noah Feldman demonstrated in his recent marvelous study of Madison, the Virginian could be remarkably understanding of some of his political opponents, such as James Monroe, whom he continued to regard as genuine friends who simply had different views from his own, Hamilton was consigned to the role of a veritable anti-Christ, an enemy to the Republican Form of Government at least as conceived by Madison.  The Democratic-Republican Party was founded in part to fend off the Satanic blandishments of the glib and clever Hamilton, and that required as well the manufacture of arguments that might counter those of Hamilton and his own allies.  Madison and his allies proved just as willing as many of the Federalists to adopt the rhetoric of a “fixed” Constitution.  No longer was the Constitution “incomplete,” to be filled in by imaginative and innovative legislators; “instead, [it] already possessed an operative meaning, discoverable in the fixed past” (p. 310). 

            What Gienapp is setting out is not, in fact, a method of interpretation that will generate what all of us will agree are the correct answers to constitutional conundra, but, instead, a rhetoric of interpretation that participants in the particular language game of “law talk” would increasingly be expected to use.  Whatever Madison might have written, particularly in Federalist 14, about the importance of rejecting tradition and what he called the authority of “names” in favor of the “lessons of experience,” that increasingly took second place, at least in public debate, to what was ostensibly revealed in the text or the teachings of those who were now viewed as creators of the Constitution.  Obviously, we live today in the shadow of the intellectual (or rhetorical) tradition that Gienapp set out.  

            But Gienapp, perhaps because he is a truly gifted historian, offers relatively little succor to contemporary “originalists” other than describing how that particular aspect of the constitutional language-game emerged out of the intense political conflicts of the 1790s. He concludes his book, for example, by stating, “The irony of the endless search for the original Constitution is that such an inquiry will never reveal a fixed document.”  Whatever our cultural “fascination with fixity,” the concept itself is chimerical.  Thus, he concludes, “Appreciating how the idea of a fixed Constitution was invented, in other words, should encourage us to imagine anew, in our own time, what the Constitution ought to be” (p. 334).  

            As Alison LaCroix notes in her ow review of Gienapp, he quite properly devotes very few pages to the judiciary or to the particular contributions of John Marshall, present in this book primarily as a member of the Virginia ratifying convention.  Marshall would not emerge as an important figure, perhaps a genuine “Founder” of our operative constitutional order, until the 19^thcentury.  But it is worth noting, I believe, that “the Great Chief Justice’s” all-important opinion in McCulloch v. Maryland (1819) provides the basis for the critique of “fixity” as a constitutive notion of the Constitution.  By then, Madison had thrown in the towel on the propriety of chartering a Bank of the United States; he had, after all, signed the bill establishing the Second Bank in 1816.  At the very least, his version of original understanding and fixity, argued at length in 1791, was rendered irrelevant by the brute reality of acceptance by the polity in general of the legitimacy of the first Bank of the United States, which had expired in 1811.  He never for an instant admitted that he had been  mistaken in his 1791 opposition to the Bank, only that it was time in effect to move on.  However, he was rendered apoplectic by the specific reasons offered by Marshall for upholding the Bank, and he wrote Virginia’s Chief Justice Spencer Roane, probably correctly, that the Constitution would not have been ratified had wavering delegates been aware of the construction that Marshall would give it with regard to the vast reach of national power under Article I, Section 8.  

            One might well argue that Marshall in substantial measure rejected much of the belief in the “fixed” Constitution in favor of a far more capacious understanding that was similar to the “true” original understanding, as of 1787-1788, attributed to Madison, that “the Constitution was incomplete, partial, and in critical ways indeterminate,” so that “ongoing discussions and experiences would help make new meanings that would flesh out the unfinished edifice that he had helped construct” (p. 332). How does Marshall do this? Consider only his seemingly casual reference to the Constitution as a “great outline” that would presumably need to be filled in as the lessons of experience suggested, including, for example, the realization that the United States was no longer confined to its original borders east of the Mississippi River, but now reached to the Pacific Ocean. His opinion included the reminder that “we must never forget it is a Constitution” that is being “expounded,” which Felix Frankfurter thought was the most important single sentence in the canon.  I confess I did not understand Frankfurter’s enthusiasm for many years, until I linked it with a sentence several paragraphs later, in which we were reminded that the Constitution was designed “to endure,” which in turn entailed that it “must be adapted to the various crises of human affairs.”  To be sure, one might read this in a quite limited, almost Schmittian sense, so that “adaptation” would occur only in cases of “emergency,” whereas otherwise we would stumble along, for better or worse, with our “fixed” understandings. 

 But it appears fairer to the Marshallian understanding to offer the same kind of capacious meaning of “crisis” that he himself offered with regard to the notion of “necessity,” which notoriously turned out to mean “convenient or useful.” It seems altogether appropriate to make “crisis” synonymous with the notion of “challenges” facing our political order at any given time.  Thus conceptions of national power, in particular, had to adjust—be “adapted to”—the development of a national economy—and in our own time globalization—let alone the perhaps existential threats presented by climate change and other environmental issues.  There is something profoundly stupid, even “imbecilic”—the word used by several critics of the Articles of Confederation to justify the need for a new Constitution in 1787—in Justice Scalia’s snarky statement, in his dissenting opinion that would have struck down Obamacare, that it is a mistake to believe that Congress necessarily has the power to do “whatever-it-takes-to-solve-a-national-problem.”   Better, presumably, to drive over a cliff rather than “adapt” one’s constitutional understanding to allow Congress to meet a genuine “national problem.” As Jack Balkin and I have argued elsewhere, this is a formula for a certain kind of “constitutional crisis.”  As much to the point is that Scalia’s view, if taken altogether seriously, further undercuts the rationale for anyone’s even genuinely respecting, let alone “venerating,” our Constitution.  

            It is telling, I believe, that Randy Barnett, in his influential book (at least in conservative circles) on an ostensibly “Republican Constitution,” goes out of his way not only to disdain what some might view as democratic self-government—because he wants an empowered judiciary to monitor alleged constitutional overreaching by the demos, including, he believes, Obamacare—but also, and more relevantly for the purposes of this review, what might one believe is the central teaching of John Marshall about the need for adaptation if a Constitution is truly to “endure”—or, one might even say, to live.  Scalia was proud to announce his devotion to a “dead Constitution,” one purportedly “fixed” in past understandings.  Gienapp allows us to understand the continued rhetorical pull of such arguments, but he also demonstrates their embeddedness, both in 1790 and 2018, in fundamentally political conflicts and their basic fatuousness as genuine guides to determining constitutional meaning.