Some of the most vehement intellectual opponents of originalism have been historians. The reasons for this disagreement are several. One is that lawyers and historians have different objectives. Lawyers seek the best way to interpret the meaning of a written text. Historians are more interested in the motives of those producing it and the causes that led to its creation. In the case of originalism, this difference has a particular bite. Originalists now seek the public meaning of a text, not the private intentions of those who drafted it. Historians, by contrast, often want to capture the mindsets of the people of a historical period. Another reason may be ideological. While originalist academics tend towards the right, historians are almost uniformly on the left. In any event, the result has been a continual series of skirmishes between originalist lawyers and American historians.

We have been involved in some of the skirmishes ourselves and have generally been unimpressed by the work we criticized. But a relatively recent book, The Second Creation: Fixing the American Constitution in the Founding Era, by Jonathan Gienapp has proven to be a more serious challenge, which has not been sufficiently analyzed by originalists in the four years since it has been published.     

Gienapp’s thesis is extremely bold. First, according to Gienapp, the United States Constitution was not predominantly conceived to have a fixed or complete meaning at the time it was enacted. Like the British constitution, it provided an outline of fundamental law, but that outline was intended to be filled in and even evolve over time. Second, only after important debates in the early republic (principally over the Bank of the United States, the removal of executive branch officials, and the respective powers of the Senate and House as to treaties) did there come to be a consensus that the meaning of the Constitution was fixed.

Thus, Gienapp strikes at the heart of originalism. If the Constitution’s meaning was not originally intended to be fixed and only came to be understood as fixed through nonoriginalist practice, then originalism itself was a nonoriginalist innovation, and possibly illegitimate. While Gienapp has presented a bold thesis, we disagree with its major claims and many of his supporting arguments.

The Analogy to the British Constitution

Gienapp suggests the federal Constitution was not regarded as fixed on the grounds that it was like the British constitution, which he argues was conceived of as evolving fundamental law. But Gienapp fails to give sufficient weight to the importance of changes in constitutionalism prior to the federal Constitution’s enactment. First, state constitutions were the more recent and relevant precursor to the federal Constitution. And these constitutions were written. Gienapp surprisingly does not sufficiently emphasize that a significant purpose of writing down the Constitution was to clarify what was in it and what was not. That decision implies its meaning was fixed.

Second, as American state constitutionalism progressed, drafters became increasingly concerned about what kind of enactors could make fundamental law, and they moved the decision from legislators to specialized conventions—a practice followed by the federal Constitution and memorialized in Article VII. A concern with the legitimacy of constitutional enactors itself suggests fixity at the time of enactment. Moreover, as sovereignty became located in the people of the United States with only delegated power located in its institutions like the legislature and judiciary, it also became less plausible to argue that the Constitution was not fixed as to the power of these institutions.

Third, careful drafting of legally binding instructions was the hallmark of the original Constitution and the Bill of Rights. It would have been extremely odd to carefully enumerate powers and define rights, if they were not to be binding but were to evolve over time. The federal constitution and the Bill of Rights represented the culmination of a process of legalization, including the use of enumerated powers and a legally operative Bill of Rights, that effected a significant change in how a constitution was understood.

Instead of following the early proposal of the Virginia plan to use vague language (such as allowing Congress “to legislate in all cases to which the states are incompetent”), the Philadelphia Convention chose to enumerate specific powers, such as the power to tax and to regulate commerce. It is unlikely that such powers were not intended to be the exclusive and unchanging powers of Congress, especially since the Tenth Amendment limited the federal government to powers “delegated to the United States.” Similarly, the first ten amendments were written as legally operative provisions, such as “excessive bail shall not be required” rather than the less definite statement of principles of earlier Bills of Rights, such as Virginia’s provision “that excessive bail ought not to be required.” The definiteness of such provisions again suggests that they are exclusive and unchanging. While Gienapp relies on some evidence from the Philadelphia Convention, the Convention ultimately rejected the British model and made the decision to enact a more legal and fixed constitution than the British had.

Gienapp also cites the fact that the Constitution can be amended to support the thesis it is not fixed. The presence of a formal amendment process, however, is a strong indication that the Constitution is fixed. The amendment process suggests that it is the exclusive way of changing the Constitution. If the Constitution could evolve by way of the judiciary or the Congress, there would have been much less reason to establish strict supermajority rules to enact constitutional amendments. By contrast, the British Constitution allowed changes through judicial evolution and certain Parliamentary enactments and therefore contained no explicit constitutional amendment process.

Another clear indication that the document was the exclusive constitution rather than merely part of a partially unwritten fundamental law derives from the Supremacy Clause. The Supremacy Clause states that “this Constitution . . . shall be the supreme law of the land.” Clearly, the language “this Constitution” refers to the document rather than to a system of fundamental law to which the document was merely a part.

Gienapp correctly notes that many Framers rejected the idea that liberty was protected by parchment barriers in the constitutional text and suggests that this rejection implies they did not rely on the fixed meaning of the text, but on structure as the key feature of our fundamental law. But the structure cannot be so easily separated from the text: words define the content of the structures. Moreover, the rejection of parchment barriers as an adequate check does not imply that the Constitution was not regarded as having a fixed meaning. One can believe that parchment barriers are insufficient, not because they are unfixed, but because political actors are expected to ignore those fixed barriers. In fact, this very common understanding is a popular justification for judicial review—without judicial review, Congress and the states might ignore the Constitution’s meaning. Consequently, one might believe that it is important to establish a constitutional structure in order to ensure that the Constitution’s binding meaning is followed. 

The Role of Interpretive Rules

One of the ways to ascertain the fixed meaning of potentially ambiguous provisions is to apply the interpretive rules that were expected to be applied. Gienapp appears to believe that uncertainy about the meaning of the Constitution suggests it was not fixed at its creation. But it was and is a familiar point that virtually all laws are unclear in certain specifics. Thus, the fact that the document contained some uncertainties does not mean the Constitution was not finished. Rather, drafters of the Constitution knew and expected that a rich background of legal interpretative rules would be employed to resolve these uncertainties.

While Gienapp states there was no consensus on legal rules of interpretation in the early republic and thus they cannot help provide fixity, he does not review and categorize the actual legal rules as used in particular debates. Reviewing the Bank debate, we show there was substantial convergence between advocates and opponents of the Bank on what the interpretive rules were. And the basic legal rules of interpretation did not much change from debate to debate. For instance, contrary to Gienapp, Madison had a relatively consistent position throughout the debates on constitutional method.

Gienapp also misreads the Anti-Federalists’ position on the application of legal rules to the Constitution. Gienapp suggests that the Anti-Federalists believed that the Constitution would be interpreted using non-legal interpretive rules. This, he argues, shows that there was no consensus that such rules should be used. But as we have noted before, while the Anti-Federalists were against using legal interpretive rules to interpret the Constitution, they nevertheless expected the Constitution as written would be interpreted using such legal rules. That is one of the reasons they opposed the Constitution’s ratification. Thus, their position does not challenge our claim that it was assumed at the time of enactment that the Constitution would be interpreted in accordance with established legal rules. Indeed, it counts as evidence in favor of it.

Post-Ratification Debates

Gienapp also argues that some of the vigorous debates in Congress and elsewhere about important issues, like the Bank of the United States or the executive removal of officers, show that some members of Congress believed the Constitution was unfinished. As a general matter, sharp disputes about the meaning of a document do not necessarily suggest that the meaning is not regarded as fixed. Disagreement does not imply that there is no fact of the matter about which to disagree.

We also dissent from many of Gienapp’s specific contentions. For instance, he suggests some of the Bank’s advocates thought it was ultimately up to the legislature to decide what was necessary and proper to the enumerated powers and thus whether the bank was constitutional. But even if this last claim were true, it would not mean that the constitutional meaning was not fixed, just that the legislators, not judges, were the primary decision-makers about its meaning. And we believe that this is not the best reading of the advocates’ argument. Instead, Bank advocates were generally arguing that the fixed meaning of the Necessary and Proper Clause gave Congress substantial discretion to determine the means by which the enumerated powers could be effectuated. The Constitution’s meaning thus can be fixed and yet provide ample discretion over the choice of means.

At times, Gienapp also misunderstands legal arguments in the course of considering the debates in the early republic concerning the removal power. For instance, he suggests that the document did not decide this matter but left the constitutional issue to later decision-makers to resolve. But this is wrong. It is true there was disagreement about the correct interpretation of the Constitution on this issue but that does not mean the Constitution left the issue open. One possibility is that the Constitution gave the removal power to the President through the grant of executive power. But if one does not find removal in the executive power, that does not mean the Constitution is silent on it. Instead, if removal is not found in the executive power, then Congress is allocated the policy-making discretion under the Necessary and Proper Clause to legislate how much removal authority the President should enjoy.

Many of Gienapp’s mistakes are characteristic of the problems some historians have had in interpreting the Constitution. While historians not infrequently accuse lawyers of being ignorant of relevant history, they themselves are not infrequently less versed in relevant law and legal rules. If there is such a thing as law office history, there is also history office law. But more important than particular mistakes, historians sometimes ignore the most important historical context for law: the legal context. We believe that this is a primary source of Gienapp’s errors.

Legal arguments, for instance, must be evaluated to determine their weight. Lawyers, to put it bluntly, sometimes make weak arguments that should be given little weight, because they conflict with the consensus on the nature of legal argument at the time. But Gienapp and many other historians are extremely reluctant to distinguish between the good and the bad legal arguments that were made at the time—either because they cannot evaluate them or because they believe historians ought not to be judging arguments made by historical figures. Unfortunately, that stance will often interfere with the ability to determine the original meaning of a legal document.

Our criticism of The Second Creation does not change our conclusion that it is the most interesting book written by a historian about constitutional interpretation in many years. Nor have we the space in this review to address fully all of Gienapp’s complex and thoughtful arguments. Sadly, however, if a book by a historian of Gienapp’s caliber often seems wrongheaded to constitutional lawyers, it may suggest the disagreement between historians and lawyers about constitutional meaning may be as intractable as the ancient one between philosophers and poets.