New Stanford research reexamines the story of the U.S. Constitution’s creation

Oct. 22, 2018 – How to interpret and apply the U.S. Constitution – a frequently debated issue – didn’t begin after the document’s framers were no longer alive to clarify their work. In fact, debates over what the Constitution means erupted immediately after it was created, shaping the way Americans view it today, according to new Stanford research.

Jonathan Gienapp, an assistant professor of history, has closely examined the debates of early U.S. lawmakers in the 1790s, a period that he said has been understudied by American history scholars. He hopes his research challenges the way people think about the Constitution.

Advertisement

“When most people think about the U.S. Constitution’s genesis, they usually think about when it was written and ratified,” Gienapp said. “But what I try to show is that the years after its creation did as much to give the Constitution the meaning it has today.”

Gienapp hopes his work will help inform current arguments about the Constitution, including debates about whether it should be viewed from a contemporary perspective or interpreted according to its original meaning, an idea known as constitutional originalism.

“My research helps contextualize the questions that I think originalism forces us to ask: What kind of thing is the Constitution? Does it evolve over time? Is it set in stone? How are we supposed to interpret it?” Gienapp said.

His research was recently published in a new book, The Second Creation: Fixing the American Constitution in the Founding Era.

The Stanford News Service interviewed Gienapp about his work.

 

Why is this research important today?

My work raises a broad set of questions about the relationship between the past and the present in a democracy. A democracy, on the one hand, is supposed to effectively capture the wishes of those of us currently living in the country. So how do you reconcile that with authoritative appeals to the past, and maybe the distant past? To what extent should history and the origins of our nation play an ongoing role in how we think about life today?

People often like to appeal to authorities outside themselves. There is this set of rules that tells us what to do, so we have to do it. There is comfort in that. For decades, Americans have appealed in that way to the so-called Founding Fathers of the United States. And a lot of people rightfully ask: Isn’t that a problem in a democratic society? Isn’t it problematic for us to end up in a place where instead of figuring things out for ourselves, we spend more time figuring out what the founding fathers thought?

I’m hoping that by rethinking the original story of the Constitution, my work will encourage people to think more deeply about some of those questions. When we’re trying to figure out what to do today and what rules bind us, what role should people who are long dead play in that process?

I don’t think there are straightforward or obvious answers to these questions. But we need to spend more time thinking about them and less time uncritically invoking Thomas Jefferson, James Madison or George Washington. The deeper questions to ask are: Why do we engage in these practices? Should we? In what cases should we appeal to the past and in which cases should we not?

What do Americans take for granted about the way they think of their Constitution today?

People today argue vigorously about what the Constitution means. But usually there is an unspoken agreement about what the Constitution itself is. It is a written text, and it is a form of law. We often take these distinctive features to be part of the Constitution’s DNA. But, at the time the Constitution was conceived, there was far more uncertainty about what kind of thing the Constitution really was.

The simple idea that a constitution is a written text was not something colonial Americans were intuitively drawn to. The British government, which Americans were subject to, didn’t have a written constitution. Then, as now, it was a convergence of unwritten norms, practices and different authoritative documents that collectively formed a constitutional tradition. And Revolutionary-era Americans clung to these habits even after the Declaration of Independence was issued in 1776.

The Constitution’s current status as a conventional form of law was also not set in stone when it was initially created. Today, we think of the Constitution as a brand of law. Lawyers argue about it and judges decide ultimately what it means.

In some sense, of course, the Constitution was always law-like. But originally, there were lots of Americans who pushed back against that idea that the Constitution was a legal text. They instead thought it was a “people’s” text, not the special province of lawyers to interpret and enforce. It was something that ordinary people needed to be able to understand and control. Meanwhile, others thought it was a kind of law, but they couldn’t figure out which kind. All they could agree on was that the Constitution was unlike any other form of law they had ever seen.

For better or worse, there is nothing inevitable about where we’ve ended up today. I try to draw attention to all of these alternative paths not taken in my research.

Could you give us an example from your research that showcases how the country’s founders wrestled with the Constitution’s meaning?

Throughout the first year of Congress, the workload was immense. Congressmen had to set up a whole new national government. Yet just a month into their proceedings, in May 1789, they found themselves embroiled in an unexpected debate.

The controversy began when James Madison proposed that there would be a department of foreign affairs, what we now call the State Department. He added that the person in charge of this department, the Secretary of Foreign Affairs, would be appointed by the president with the advice and consent of the Senate, as the Constitution said, and would be removable by the president. But a congressman from South Carolina, William Loughton Smith, said, in effect: “What do you mean removable by the president? The Constitution doesn’t say anything about that.”

They proceeded to spend several weeks debating this single issue: whether or not the president alone had the power to remove executive officers. They did so because they recognized it was a much larger debate. They were really debating what they were supposed to do – what all Americans were supposed to do – when the Constitution is silent on something. Did they, as congressmen, have the authority to fill in the silence? Or were they beholden to the words on the page even if, as many worried, that would lead to silly or unfortunate results? In this case, a Cabinet secretary that might serve for life.

It was such a fascinating moment because it was utterly unexpected and it revealed something profound. When congressmen tried to apply the Constitution in the spring of 1789, they learned that there was no obvious path to follow. There were no working rules for implementing it. And in inventing these kinds of rules, these leaders played a major role in actually creating the Constitution.