Power  /  Book Review

How Did the Constitution Become America’s Authoritative Text?

A new history of the early republic explores the origins of originalism.
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In the chaos otherwise known as the Trump era of American politics, history, it seems, has leapfrogged into the foreground of discussions over the country’s current predicament. In the search for answers about who we are as a nation and how we got here, a wave of new historical monographs has returned to the founders, their intentions, and their relevance for today. One such work, Joseph Ellis’s engaging American Dialogue: The Founders and Us, compares attitudes toward race, equality, law, and foreign policy during the founding period and our own. Another, Jill Lepore’s ambitious These Truths: A History of the United States, surveys these seminal issues by tracing the changing meanings of “liberty” and “equality” from the founding era to the present.

Jonathan Gienapp’s The Second Creation: Fixing the American Constitution in the Founding Era has a narrower scope, offering a close reading of constitutional history with no mention of the present. Yet his study nonetheless focuses on many of the structural and institutional issues that continue to consume us—including presidential powers, the role of Congress, and the use and abuse of originalist approaches to the Constitution—and in so doing raises questions that shine a light on today’s national debates.

An intellectual historian of America’s founding period, Gienapp is particularly concerned with how the Constitution became an authoritative document in the early years of the Republic. “What kind of an instrument was it?” he asks. Was it intended to be a law, a treaty, or a statute? Was it limited to the powers that it enumerated, or was it meant to convey implied powers? Was it intended to be applied via a process of “excavation,” with lawmakers mining the original text, or “invention,” with lawmakers taking their cues as time and context demanded from the spirit of the founding document? Ultimately, Gienapp shows us, the arguments for excavation and invention converged, a trend that culminated in the debate over the 1795 Jay Treaty between the United States and Britain, which sought to resolve issues lingering from the Revolutionary War. According to Gienapp, the terms of that debate bestowed upon the Constitution an unprecedented “fixed” and “sacred” status—one that, the author contends, we continue to honor to this day.