Fixing Implied Constitutional Powers in the Founding Era

By Mikhail, John | Constitutional Commentary, Fall 2019 | Go to article overview

Fixing Implied Constitutional Powers in the Founding Era


Mikhail, John, Constitutional Commentary


The Second Creation: Fixing the American Constitution in the Founding Era. By Jonathan Gienapp. (1) Harvard University Press. 2018. Pp. 451. $35.00 (Cloth).

Jonathan Gienapp's new book, The Second Creation, is a marvelous study of the earliest debates over constitutional language, meaning, and interpretation. In virtually every respect, the book is brilliantly conceived, meticulously researched, and masterfully executed. Like any worthwhile scholarly endeavor, it will generate fresh insights and open up new avenues of inquiry, some of which may eventually call into question some of Gienapp's own premises and arguments. In the current academic and political climate, the implicit challenge this exciting monograph poses to originalism also seems likely to provoke a certain amount of healthy controversy.

The Second Creation is written for multiple audiences. On the one hand, the book is addressed to historians, political scientists, and other specialists in early American politics, offering them a dramatic new account of the drafting and ratification of the Constitution, along with four early constitutional controversies: removal, amendments, the bank, and the Jay Treaty. As his title implies, however, Gienapp also defends a provocative thesis of import for constitutional lawyers and, in particular, constitutional originalists. In a nutshell, that thesis is that constitutional meaning was not fixed when the Constitution was framed and ratified. Nor did it operate as a significant constraint on early practice. The "Fixation Thesis" and "Constraint Principle" endorsed by many contemporary originalists, (3) therefore, are untenable insofar as they endeavor to be faithful to the best historical understanding of the founding era--or so Gienapp seems to suggest. A close encounter with that history reveals that constitutional meaning was uncertain, unstable, and "up for grabs" right from the start. In no small part, this was due to a pervasive uncertainty over what kind of instrument or object the Constitution itself actually was.

For example, the Constitution is written, yes; but is it entirely so? Is it a contract, power of attorney, corporate charter, something else? (4) To what extent does it presuppose or incorporate principles of common law or the law of nations? And what is the significance of its most noteworthy omissions? The Articles of Confederation contains a crucial provision reserving to the states all powers not "expressly delegated" to the United States, but the Constitution does not. (5) Does the Constitution nonetheless presume that whatever is not given is reserved? Does it presume that whatever is not expressly given is reserved? What about the document's very first and most striking sentence--the Preamble? Does it fall within the scope of the Constitution?

Finally, what should one make of the fact that some of the state ratifying conventions adopted the Constitution with a "form of ratification" or other interpretive declaration, explaining how the document should be construed? When the South Carolina convention adopted the Constitution, for example, it echoed the Articles of Confederation by declaring that "no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union." (6) Likewise, when the Virginia convention ratified the Constitution, it did so with the stipulation--prepared by a five-member committee that included James Madison, Edmund Randolph, and John Marshall--that "no right of any denomination can be canceled, abridged, restrained, or modified by the Congress... by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes." (7) As Randolph proposed to the Virginia convention a few days earlier, the purpose of this stipulation was to enable Virginians to consider "every exercise of a power not expressly delegated" (8) by the Constitution to be a violation of that instrument. …

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