At the Federalist Society Blog, Stephen Presser reviews The Second Creation: Fixing the American Constitution in the Founding Era, by Jonathan Gienapp: The Tenacity of Transformation Theory, and Why Constitutional History Deserves Better. From the introduction:
Jonathan Gienapp, author of The Second Creation: Fixing the American Constitution in the Founding Era, is a junior colleague of [Jack] Rakove’s at Stanford. Like Rakove and [Mary Sarah] Bilder, he considers Madison central to his exposition. But rather than make Madison’s Notes on the Constitutional Convention his subject, Professor Gienapp focuses on the activities of the first Congress, where Madison was a prime mover. Gienapp argues that the first Congress, in essence, engaged in a “second creation” of the Constitution, abandoning one closer to the British “constitution” of broad principles which guaranteed flexibility and change in favor of one fixed in meaning for all time, the interpretation of which relied on an “original understanding” of the document’s framers. In other words, Gienapp sees the first Congress as a moment of constitutional transformation.
The progressive trope of transformation, which implicates the notion of a “living” or “evolving” Constitution, seems like it was designed, consciously or unconsciously, to support modern judicial progressives, such as the members of the Warren Court or Justices Anthony Kennedy and Sandra Day O’Connor, who understand their task to be to refashion constitutional principles—particularly the “equal protection” and “due process” provisions of that charter—to fit the “evolving standards of decency” that supposedly characterize American civilization.
Rakove’s, Bilder’s, and Gienapp’s books could be seen as an attack on the jurisprudence of originalists like Justices Antonin Scalia and Clarence Thomas, who embrace the notion that the only sensible and valid strategy of constitutional hermeneutics is to interpret the document according to its plain meaning at the time it was passed or amended. The theory of an evolutionary development of constitutional meaning, based as it is on an idea similar to Darwin’s speculation with regard to the evolution of the species, has undeniable intuitive appeal. Nevertheless, evolutionary jurisprudence is in uneasy tension with more basic ideas about ours being a government of laws and not of men, and thus with our hallowed concept of the rule of law itself. If judges become legislators, there is an end to separation of powers, and popular sovereignty also goes by the board. Some scholars are fighting a rearguard action. But Gienapp’s new book and the honors bestowed on previous books telling a similar story—Horwitz’s and Bilder’s books both won the Bancroft Prize, the highest accolade the history fraternity can bestow—show that alternative stories about constitutional and legal development are out of favor.
And from later on:
The notion that one can look to the debates in Congress for authoritative interpretations of the Constitution undergirds Gienapp’s book, but it is mistaken. Gienapp is a historian, not a lawyer, and his book has very little on the early federal courts and how they understood the Constitution. While Rakove once appeared to understand that there were great men before Agamemnon—most other American historians appear to believe that the work of the federal courts did not begin in earnest until John Marshall became Chief Justice in the early nineteenth century—Gienapp does not support his argument about a second creation of the Constitution by examining the interpretation of the Constitution in the federal courts in the 1790s. Had he done so, I suspect he might have discerned that the Constitution was not transformed from a malleable to a fixed document. Rather, the implicit fixed-meaning approach—without which Federalist 78 is incomprehensible—prevailed from the beginning to the end of the decade in the courts.[12] If one wants to understand constitutional hermeneutics, one’s inquiry should include all three branches of the government, and perhaps even the attitudes of the press, the public, and the academy, though this may be asking too much of any single scholar.
Thanks to Will Foster for the pointer.
RELATED: For coverage of other reviews of The Second Creation, see here (generally favorable symposium at Balkinization), here (generally negative review by Ilan Wurman), and here (comments by Mike Rappaport).
Posted at 6:19 AM