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10/22/2018

Jonathan Gienapp on the Un-Fixed Constitution
Michael Ramsey

In the Boston Globe, Jonathan Gienapp (Stanford history): Originalism is the rage, but Constitution’s authors had something else in mind.  From the introduction: 

Originalism continues to surge in popularity, winning converts across the federal judiciary, law school faculties, and the political ranks, while the Supreme Court often decides cases based ostensibly on what the Constitution meant to those who conceived it — most prominently of late in the 2008 Second Amendment case District of Columbia v. Heller. As the Kavanaugh hearings reminded us, Americans’ preoccupation with our Constitution’s birth fuels relentless struggles over the Founders’ intent, the Constitution’s original meaning, and the nation’s foundational values.

Despite this outsized attention, crucial features of the Constitution’s creation remain obscure. It is often assumed that the Constitution was fully created in 1787 and 1788 when it was written and ratified. But when it initially appeared, 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.

Certain answers might have seemed obvious. For starters, the Constitution was a written text. Unlike the unwritten British constitution that Revolution-era Americans had come of age worshiping — which was an amorphous amalgamation of custom, practice, and tradition — the American Constitution enjoyed an obvious tangible presence. Comprised of seven articles and some 4,000 words, it could be located clearly in space and time. But in 1789, when members of the new federal government began putting the Constitution into effect, this basic description revealed little about the Constitution’s definitive features. No matter the depth of American constitutional debate to that point, there were no easy answers to a host of basic questions that cut to the Constitution’s core. What kind of object was it: 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 it a complete and finished instrument or were subsequent users to fill in its gaps and resolve its contradictions? Was its meaning set in stone or changing? The Constitution was born in flux.

And in conclusion:

When, today, constitutional originalists and living constitutionalists squabble over whether the Constitution’s meaning is fixed or evolving, they illustrate just how enduring this peculiar conception of constitutional fixity has been. It seems impossible to avoid this fundamental choice.

Yet, nothing about the Constitution itself demanded that Americans ever thought of fixity and change as mutually opposed. This choice owes less to the Constitution than an entirely optional way of imagining it, one forged during the decade following the Constitution’s nominal creation. If we look at the early history of the Constitution anew and put aside our obsessive search for an original fixed document, we will find a story about how the Constitution’s first users inadvertently sanctioned a novel idea of constitutional fixity.

If we grasp this hidden history of the Constitution’s creation, we might recognize that we are as free to imagine the Constitution’s possibilities anew as those Americans who first took custody of it so many years ago.

More on this topic in Professor Gienapp's outstanding new book, noted here.

But:  that some constitutional issues were unsettled does not show that all constitutional issues were unsettled.

(Thanks to Andrew Hyman for the pointer).