The Second Creation: Fixing the American Constitution in the Founding Era

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? Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the Founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption-a story with explosive implications for current debates over constitutional originalism and interpretation. When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document's uncertainty, and-over time-how these leaders imagined the Constitution radically changed. They had begun 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. This means that some of the Constitution's most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.

About the Author :
Jonathan Gienapp is Assistant Professor of History at Stanford University. A scholar of early American political culture, he has written several articles on early constitutional history and modern constitutional theory and interpretation that speak to current political concerns.

Review :
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…Gienapp’s study—intellectual history as textual exegesis at its best—offers a convincing and invaluable examination of the words and ideas that marked the evolution of the American constitutional imagination. Sophisticated…throws a wrench in the logic of judicial originalism by demonstrating the flexibility of the Constitution’s meaning during its first years. The greatest innovation of the American Revolution was the idea of a written constitution as supreme fundamental law. But another truly significant development immediately followed the ratification of the Constitution: the equally innovative but deeply controversial invention of modes of constitutional interpretation. Jonathan Gienapp explores how this process unfolded, brilliantly explaining the search for the original meaning of the Constitution. The Second Creation is a brilliant and timely intervention in American constitutional history. By showing how ‘original intentions’ originated in congressional debates about what the framers and ratifiers originally intended, Jonathan Gienapp forces us to take another long look at what we understand the Constitution to be. His innovative and persuasive study will revolutionize the way lawyers as well as scholars interpret the Founding era. Gienapp focuses our attention on the first decade of controversy over the remarkable new invention, a national constitution. His fascinating and provocative story—how these debates created and imagined the Constitution—is told with great mastery and drama. Gienapp’s elegant reconstruction of the contested terrain of early American constitutional interpretation has wide-ranging implications for how we understand the earliest debates over the Constitution’s meaning. Gienapp offers fresh and thoughtful reinterpretations of several of the most important debates of this formative period of American constitutional development.