Alison L. LaCroix on the Invention of the Idea of the Constitution as Sacred, Circumscribed Text

The Invention of the Archival Constitution

Among the many achievements of Jonathan Gienapp’s Second Creation is the book’s elegant and decisive dismantling of many tidy just-so stories that constitutional law scholars tend to tell themselves about the period between 1787 and 1796.

Statecrafters are not settling down to the business of implementing the Constitution, passing framework statutes for the federal courts, or congratulating themselves on the creation of newly enshrined principles of judicial review.  Operationally significant questions are not only omnipresent, they flare up and quickly assume existential proportions: can the Senate demand a role in removing heads of departments, or is that power constitutionally committed to the president alone?  If the president signs a treaty and the Senate ratifies it, can the House of Representatives decline to execute it, or must Congress legislate accordingly?  Ought the Constitution be amended – and if so, should those amendments be interleaved among the relevant provisions of the text, or should they be appended to the end of the document?  Confusion and discord reign.

As Gienapp illustrates, for these and other foundational questions in the 1790s, there were no right answers waiting to be discovered.  Even with the Constitution in hand, the members of the founding generation had to invent solutions.  The Constitution was not self executing.  Continuous acts of creation were required to ignite the engine that would in turn drive the “machine that would go of itself,” to borrow the title of Michael Kammen’s prizewinning book from 1986.

Indeed, even the theoretical undercarriage of the machine needed to be developed.  Did the U.S. Constitution take after its unwritten ancestor, the British constitution, and carry within it the same mystical combination of fixity and perpetual change that ran from Magna Carta of 1215 through the Glorious Revolution of 1688 and beyond?  Or was America’s Constitution something different – a sacred text that lived in an archive while setting the fundamental ground rules for the polity?  Over the course of the 1790s, Gienapp argues, the Constitution became the latter: “an authoritative text circumscribed in historical time” (4).  But, as The Second Creation convincingly demonstrates, such a conception did not inhere in the document itself.  On the contrary, the 1790s witnessed another act of creation that was as powerful as the drafting and ratification of the 1780s: the constitution of the Constitution.  The interpretive modes and the ontological theory that came to govern what we now term “constitutional thought” were themselves artifacts of debates that dominated the immediate post-founding era.

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