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Jonathan Gienapp on The Second Creation

Harvard University Press Blog

In The Second Creation: Fixing the American Constitution in the Founding Era, Jonathan Gienapp provides a stunning revision of our founding document’s evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution? With all eyes on the American political landscape this week, we sat down with Gienapp to discuss the history of the Constitution and how we might reimagine it in the future.

In The Second Creation you tell the story of how, in the decade after ratification, the American Constitution evolved from a document that Americans had thought would be flexible, subject to both formal amendment and informal adjustment through ordinary politics, into one viewed as a stable source of supreme political authority. Can you describe that evolution?

American constitutional imagination transformed in profound ways during the first decade of the Constitution’s existence. The key to understanding why and how is to first grasp that when the Constitution initially appeared in 1787 it was shrouded in uncertainty. Not only was the Constitution’s meaning unclear but, far more significantly, it was unclear what the Constitution itself actually was. It is often assumed that, while Americans have long argued over the Constitution’s meaning, they have always more or less agreed on what the Constitution essentially is: a written text, comprised of seven articles and over four thousand words, that forms the nation’s fundamental law. But this basic description reveals very little about the Constitution’s definitive features, which was well understood at the Founding. At that time, there were no easy answers to a host of basic questions that cut to the Constitution’s core. What kind of object was the Constitution: a text, a system, a framework, or something else entirely? What defined its character: was it akin to other legal instruments or completely novel in kind? Was the Constitution a complete or incomplete instrument? How and by whom was it to be enforced? The Constitution was born in flux. Those leaders who gathered under its auspices beginning in 1789 would not merely carry a well-understood instrument into effect; they would have to answer these open questions about the Constitution’s very nature.

In confronting that uncertainty, American political leaders fought over how to imagine the Constitution—its content, its properties, its character. In the process, they helped give the Constitution shape and definition that it had previously lacked and thus played a foundational role in creating, as much as interpreting, the document.

Over time, by furiously appealing to the Constitution to justify their various political claims, these leaders breathed life into particular ways of conceiving of the Constitution. These leaders began 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. Nothing about the Constitution itself necessitated this outcome. Only by putting an uncertain Constitution to work did early American leaders begin seeing their supreme governing instrument in many of the ways we see it today.