Founding Era Research Articles

Church Taxes and the Original Understanding of the Establishment Clause

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps to explain a striking fact about the Founding era that the no-aid theory has largely ignored — the pervasive funding of religious schools by both the federal government and the recently disestablished states. But it also has important implications for modern law. Most significantly, it suggests that where a funding program serves a public good and does not treat the religious aspect of a beneficiary’s conduct as a basis for funding, it is not an establishment of religion.

The Closing of the American Constitutional Imagination

In his relentlessly substantive and intelligent book, The Second Creation: Fixing the American Constitution in the Founding Era, Stanford historian Jonathan Gienapp offers an important contribution to founding scholarship and a fresh and foundational challenge to originalism. Specifically, Gienapp examines how the founders answered the question, what is a constitution? The historical narrative resulting from Gienapp’s research into this question traces the eclipse and eventual replacement of “incomplete” and “unfinished” understandings of constitutional identity with a form of constitutional consciousness he calls “constitutional fixity.” This review essay identifies several contributions of Second Creation and explains how and why it represents a fundamental challenge to originalism. It takes issue, however, with Gienapp’s understanding of the evolution of James Madison’s understanding of constitutional identity and suggests that “constitutional fixity” may have been present in the political thought of the American founders earlier than Gienapp claims.

American States of Nature: The Origins of Independence, 1761–1775. By Mark Somos. New York: Oxford University Press, 2019. 424p. $49.95 cloth. - The Second Creation: Fixing the American Constitution in the Founding Era. By Jonathan Gienapp. Cambridge, MA: Harvard University Press, 2018. 464p. $35.00 cloth.

American States of Nature: The Origins of Independence, 1761–1775. By Mark Somos. New York: Oxford University Press, 2019. 424p. $49.95 cloth. - The Second Creation: Fixing the American Constitution in the Founding Era. By Jonathan Gienapp. Cambridge, MA: Harvard University Press, 2018. 464p. $35.00 cloth.

Election Law Originalism: The Supreme Court's Elitist Theory of Democracy

The standard topics of election law — such as campaign finance, electoral redistricting, and voter qualification laws — are facing a deeply uncertain future in large part due to the U.S. Supreme Court’s recent decisions. To consider the larger conceptual issues at stake in these decisions, this Essay addresses two inter-related questions. First: How should we conceptualize the role of the Supreme Court as an institution in these decisions? Second: What is the underlying conception of democracy that best elucidates the Court’s major election law decisions in the last decade or so? This Essay argues that the Supreme Court’s role in recent election law decisions cannot be easily reduced to a single or consistent approach. Instead, I claim that the Court majority’s opinions, when viewed from an external perspective, display a particular vision of democracy that is fundamentally elitist in its outlook. This elitist vision of democracy stands in marked contrast to the egalitarian vision of democracy that is evident in the dissenting opinions of the four liberal justices. I suggest further that this elitist conception of democracy is a familiar one — it has certain continuities (and discontinuities) with theories of republicanism that existed at the time of the Founding. Given the echo of founding era themes, this Essay considers the role of originalism in current election law decisions. It concludes that neither the Court’s decisions, nor the emerging elitist conception of democracy, fall within originalism strictly understood. That being said, the Essay suggests that some of the Court majority’s arguments display an “originalist orientation” in which original meaning takes a preponderant weight in the analysis even if it does not compel the overall outcome. In practical terms, this originalist orientation has significant implications for future election law cases because it means that, at least for some issues, the founding era is serving as an implicit baseline for the conservative wing of the Court. The Essay identifies three ways in which the Court majority’s originalist orientation matters: first, non-originalist precedents would likely carry less precedential weight; second, election law federalism would likely be interpreted in a manner hostile to egalitarian ideals; and third, electoral reform efforts could be thwarted. In future cases, this originalist orientation will likely reinforce the elitist conception of democracy and further erode the egalitarian approach to democracy.

Jonathan Gienapp. The Second Creation: Fixing the American Constitution in the Founding Era.

Jonathan Gienapp. The Second Creation: Fixing the American Constitution in the Founding Era.

Ambiguities of Prophecy: Old Testament Rhetoric in the American Founding Era

AbstractScholars have long recognized the impact of Hebrew prophecy on the rhetoric of the American Founding era, but they have assumed it is all of one type, the American Jeremiad, a clarion call for political action. In fact, biblical rhetoric during this era mirrors three types of Old Testament prophecy formulated at three distinct moments in ancient Biblical history: before, during, and after the Babylonian Exile of 587 BCE. I refer to these as repentance, Jeremiad, and disappointment. I interpret sermons by three leading Protestant ministers in order to demonstrate that all three types of Hebraic prophecy were prevalent during this era, but only one of them, the Jeremiad, seeks to inspire political action; second, the Jeremiad was prominent only during the Revolutionary War. Before the war, and after the ratification of the Constitution, the two quietistic modes of prophecy, repentance, and disappointment, are more prevalent. I conclude by speculating about what the American founders might think of the contemporary rhetorical landscape, where the Jeremiad has become dominant, drowning out more moderate forms of biblical discourse.

The Historical Justification For Prohibiting Dangerous Persons From Possessing Arms

In District of Columbia v. Heller, the Supreme Court deemed certain firearm regulations “presumptively lawful”—including “longstanding prohibitions on the possession of firearms by felons . . . .” The Heller Court did not elaborate on why such laws were presumptively lawful, instead promising to provide a “historical justification” for such laws when a better opportunity arises. Two years later, the Court again referenced these presumptively lawful regulations in McDonald v. City of Chicago, but did not use the opportunity to elaborate on the historical basis for the regulations. Thus far—over a decade since the Heller decision—the Court has not yet provided that historical justification. In the meantime, lower courts have been inundated with challenges to these presumptively lawful measures. The federal law prohibiting felons from possessing firearms has been the most challenged law under the Second Amendment post-Heller. This Article surveys English and American history to discover what historical justification the Supreme Court was referring to. Part II examines what the Supreme Court has said about firearm prohibitions on felons. Section A explains why felon bans are presumptively lawful, Section B explains why the presumption of lawfulness is rebuttable, and Section C explains why any prohibition on felons must be rooted in history and tradition. Part III explores the history of laws prohibiting categories of people from possessing arms. Section A explores disarmament efforts throughout England’s history. England had a long tradition of disarming dangerous persons, especially those disloyal to the government. Section B surveys laws from colonial America. Consistent with English tradition, colonial disarmament efforts focused on those perceived as posing a dangerous threat, including Loyalists to the British Crown, slaves, freedmen, and Native Americans. Section C summarizes the proposals from the ratifying conventions of Massachusetts, New Hampshire, and Pennsylvania. All three proposals are most reasonably read as allowing only dangerous persons to be disarmed. Section D provides examples of when prohibited persons could have their arms rights restored in the founding era. Unlike the lifetime bans that typically apply today, prohibited persons in the founding era could often regain their rights once they were no longer perceived as dangerous. Section E focuses on the nineteenth century, in which slaves, freedmen, and tramps were regulated most severely. Section F surveys the increasingly prevalent prohibitions in the twentieth century. The majority of these applied to noncitizens and are examined in Section F.1. The others applied to violent criminals and are examined in Section F.2. Part IV addresses the theory embraced by some scholars and courts that the Second Amendment was understood in the founding era to protect only “virtuous” citizens. Section A examines how the “unvirtuous” citizen theory developed despite lacking historical foundation. Section B explores historical laws that expressly permitted unvirtuous citizens to retain their arms rights. Many founders believed a virtuous citizenry was necessary for self-government, but no law ever limited the right to keep and bear arms to virtuous citizens, and no founding-era source indicated that the Second Amendment was intended to be so limited. In conclusion, this Article finds that there is no tradition of banning peaceable citizens from possessing firearms. The historical justification the Supreme Court relied on to declare felon bans “presumptively lawful” must be the tradition of disarming violent and otherwise dangerous—not merely unvirtuous—persons. Thus, prohibitions on violent felons may be presumptively lawful under Heller, but prohibitions on nonviolent felons contradict the original understanding of the Second Amendment.

The Pursuit of Happiness in the Founding Era: An Intellectual History by Carli N. Conklin

Reviewed by: The Pursuit of Happiness in the Founding Era: An Intellectual History by Carli N. Conklin Lauren Michalak Keywords Pursuit of happiness, Declaration of Independence, Blackstone, Thomas Jefferson The Pursuit of Happiness in the Founding Era: An Intellectual History. By Carli N. Conklin. (Columbia: University of Missouri Press, 2019. Pp. 241. Cloth, $40.00.) We live in cynical political times. It's easy—common even—to ascribe base motives or rationales to people's actions, particularly in the realm of politics and law. This cynicism is not reserved to our contemporary political landscape; it filters into our view of historical actors. Carli Conklin brilliantly and persuasively compels us to buck this trend and to take seriously the words inscribed in one of the foundational documents of the United States: the Declaration of Independence. Conklin does not ask us to abandon our critical assessment of the founders' intentions; rather she charges us to ground our understanding of these actors in their own times and conceptions of themselves. In a short but thorough examination of a key phrase in the Declaration—"the pursuit of happiness"—Conklin reminds us that context matters. Conklin argues that "the pursuit of happiness" had substantive and broadly understood meaning in the late eighteenth century. This meaning drew together four different elements: "English law and legal theory, the history and philosophy of classical antiquity, Christianity, and the Scottish Enlightenment's focus on Newtonian science" (8). Together, these elements reflect an understanding that the pursuit of happiness was [End Page 370] a process that sought to harmonize man and natural law, through which man strived toward a virtuous life. The result, Conklin asserts, would be eudaimonia, an ancient Greek term for "man's own real and substantial happiness" (8). The happiness that resulted from eudaimonia rested on a virtuous life that united public duty and private rights. Thus, Conklin argues, the phrase embodied "a private right to pursue a life lived in accordance with the laws of nature as they pertain to man and a public duty to govern in harmony with those laws" (134). Conklin pushes back against scholars who have dismissed the phrase "the pursuit of happiness" as either a substitution for Locke's "property" (to avoid raising the issue of slavery and property in people) or as an innocuous rhetorical flourish. In a historiographical essay in the book's appendix, Conklin challenges interpretations of the phrase set forth by William Scott (Locke's property), John Crowley (pursuit of comfort), Jan Lewis (quiet family life), and Garry Wills (Scottish Enlightenment's public virtue).1 For Conklin, these interpretations miss the complexity of the phrase by pigeonholing it to one particular meaning or strand of philosophy. Conklin's work builds on these authors, as well as studies of the process of crafting the Declaration written by Carl Becker and Pauline Maier, to give a fuller sense of how the founders understood "the pursuit of happiness" in a nuanced and uncontested way.2 To demonstrate that this understanding of "the pursuit of happiness" was substantive and broadly accepted, Conklin closely examines and compares Blackstone's use of the term in his Commentaries on the Laws of England and Jefferson's use in the Declaration drafts and its final version (approved by the Second Continental Congress). Conklin acknowledges that Jefferson rejected Blackstone's politics and found previous commentaries on English common law more accurate; yet despite [End Page 371] these differences, the common way that both Blackstone and Jefferson used "the pursuit of happiness" supports Conklin's interpretation of the phrase and her assertion of its broad and common acceptance. She breaks her analysis into three sections focusing on Blackstone and his Commentaries, the Declaration, and the commonalities in usage in both documents across their different contexts. Concise chapters make the book a quick read and potentially useful for undergraduates or graduate students as well as legal and intellectual scholars of the eighteenth century. Six appendices give readers insight into the historiographies of Blackstone's Commentaries and the Declaration as well as reproductions of key passages and drafts of each text. Conklin engages in an intensive textual analysis of the phrase "the pursuit of happiness" and delves into the...

The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp

The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp

The Pursuit of Happiness in the Founding Era: An Intellectual History by Carli N. Conklin

The Pursuit of Happiness in the Founding Era: An Intellectual History by Carli N. Conklin

Civic Longing: The Speculative Origins of U.S. Citizenship by Carrie Hyde

Reviewed by: Civic Longing: The Speculative Origins of U.S. Citizenship by Carrie Hyde Kevin Butterfield (bio) Keywords citizenship, slavery Civic Longing: The Speculative Origins of U.S. Citizenship. By Carrie Hyde. (Cambridge, MA: Harvard University Press, 2018. Pp. 308. Cloth, $46.50.) What are we to make of the fact that Attorney General Edward Bates, writing during the Civil War, was utterly and justifiably perplexed as to "what constitutes a citizen of the United States?" The meaning of citizenship was, for Bates in 1862, "as little understood in its details and elements, and the question as open to argument and to speculative criticism, as it was in the beginning of the government" (1). Only with the passage of the Fourteenth Amendment, in 1868, could Americans finally see citizenship in their own nation as a codified, clarified concept. Carrie Hyde has stepped into this field of uncertainty in a provocative and ambitious study of the contested possibilities of citizenship in the early United States. She explores how and why Americans turned to speculative traditions like theology, natural law, and fictional literature in order to create and defend wholly new notions of what citizenship ought to mean. And this really is her key point: Nebulous and imprecise definitions of citizenship "did not inhibit its cultural idealization; it actually facilitated it" (19). In a stratified, post-Revolutionary United States in which slavery, dispossession, and oppression were daily realities for many of its inhabitants, the lack of legal specificity of what was meant by the term citizen created powerful opportunities for imaginative and often radically more inclusive visions of American belonging. Hyde's first chapter is the most law-focused section of the book, laying the groundwork for the claim that incoherence and open-endedness in Americans' conceptions of citizenship before 1868 gave writers an especially open field in which to aspire, critique, and challenge. The author's [End Page 162] strengths lie in her close reading of literary texts, which means that her account of the diverse array of laws governing citizenship and alienage is relatively abbreviated and superficial compared with, say, James Kettner's still-definitive work on The Development of American Citizenship, 1608–1870 (Chapel Hill, NC, 1978). But it also means that, when Hyde does turn her interpretive eye to words that lay at the heart of these questions, fresh insights abound. Roger Taney's tortured originalism in Dred Scott v. Sandford (1857) gets an incisive reading, for instance, in part because she situates Taney's words as being, themselves, suggestive and speculative. In fact, Taney serves as evidence that speculation and creativity could just as easily work against inclusivity as for it. Somewhat strangely, though, Hyde never addresses at all what exactly the case was about. To be sure, readers of this journal hardly need any reminder of who Dred and Harriet Scott were and why the suit mattered. But the omission of even a brief mention that this was a case in which enslaved people were suing for their freedom is a sign that this book is—and of course was always intended to be—rewarding only for those with a firm knowledge of the period. For those readers, though, the book is exceptionally rewarding. Each of the final four chapters dives deeply into how vague legal and constitutional descriptions of citizenship afforded particularly salient opportunities for Americans to raise new possibilities or even to challenge the existing order. Chapter 2 considers the simple fact that one of the most common uses of the word "citizen" in the Founding era had nothing to do with an earthly polity at all. Rather, it concerned affiliation in the kingdom of God. It was at this time that translations of the New Testament began to find in Philippians 3:20 a reference to the idea that, for Christians, "our citizenship is in heaven." (Previous translations had referred to "conversation," not citizenship, in the heavenly realm.) Critiques of our world founded in this Christian estrangement from mundane things like political life "provided a way of authorizing visions of citizenship that exceeded the racialized, gendered logic of the still-emergent juridical citizen," though they could of course also serve to reinforce "existing...

Fixing America's Founding

Review of Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.

A ‘Peaceable and Orderly Manner’: Town Meetings and other Popular Assemblies in the American Founding

The New England town meeting has often been seen as the archetypical deliberative citizen forum (see, e.g., Mansbridge 1980). More recently, political theorists have begun to appreciate the way in which any particular public forum might be better understood as part of the larger deliberative system (Parkinson, Mansbridge, 2012). Much of this work draws on modern-day examples (Parkinson 2006). But a return to the American founding era reveals that while town meetings are often praised and have many democratic virtues, they also embody a limitation on popular action generally and especially on democratic dissent.

Athena Rising? Brief of Professors Jeffrey A. Lefstin and Peter S. Menell as <i>Amici Curiae</i> in Support of Petition for a Writ of Certiorari in <i>Athena Diagnostics v. Mayo Collaborative Services</i>

In Bilski v. Kappos (2010), this Court explained that its interpretation of 35 U.S.C. § 101 has been guided by over 150 years of historical practice. Yet two years later in Mayo Collaborative Services v. Prometheus Laboratories (2012), the Court triggered the most radical redefinition of patent-eligible subject matter in U.S. history by engrafting an inventive application requirement for patenting practical applications of scientific discoveries. Mayo based this requirement on three critical assumptions: (1) Congress has never addressed the question of the patentability of scientific discoveries; (2) foundational precedent of the English courts and of this Court excluded scientific discoveries and demanded inventive application as a condition of patent eligibility; and (3) a new extra-textual limitation on patentability was necessary to address the undue preemption of laws of nature and other scientific discoveries. Unfortunately, inadequate briefing in Mayo led the Court astray. The Nation’s patent statutes, stretching back to the founding era, unmistakably afford patent protection to technological innovations and scientific discoveries. Congress has expressly sought to encourage both technological inventions and scientific discoveries. The legislative concern has not been with preemption of inventive fields, which the durational limits and disclosure constraints of the Patent Act address, but rather with “min[ing]” the “exhaustless” “treasures” and “unlimited reach of science.” Specific legislative enactments in 1930, 1952, and 1954 refute any requirement of inventive application for patent eligibility. Furthermore, the Mayo briefs failed to address critical context and meaning of key cases bearing on patent eligibility of applications of scientific discoveries. Both Parker v. Flook (1978) and Mayo relied on a mistaken reading of Neilson v. Harford (1841) to conclude that English and American courts restricted patents to inventive applications of new discoveries. To the contrary, Neilson became the primary authority in England and the United States for the position that practical applications of discoveries were patentable without any invention in the means of application. Finally, contrary to Mayo’s supposition that a new extra-statutory doctrine was necessary to limit undue preemption of scientific discoveries, this Court has long held that this role was served by patent law’s express disclosure requirements. See O’Reilly v. Morse (1854) and subsequent cases. As reflected in the eight opinions in Athena Diagnostics, Inc. v. Mayo Collaborative Services, as well as clear signals in numerous other cases, the Patent Office’s frequent revision of examiner guidance documents, and legislative hearings, the Federal Circuit, district courts, Patent Office, and inventors have struggled unsuccessfully to apply the Mayo/Alice decisions coherently and predictably. These decisions have imposed massive costs upon all of these institutions and the public, thereby undermining the patent system. This case provides an ideal vehicle for the Supreme Court to revisit the standards for patent eligibility on the basis of thorough briefing of the proper statutory and jurisprudential considerations.

Brief of Amici Curiae Professor Clark D. Cunningham and Professor Jesse Egbert on Behalf of Neither Party, Blumenthal v. Trump, No. 19-5237 (D.C. Cir. Oct. 8, 2019)

On June 14, 2017, 30 Senators and 171 members of the House of Representatives filed a lawsuit in the United States District Court for the District of Columbia against Donald J. Trump, in his official capacity as President of the United States of America. The complaint alleged that the President had violated both the Domestic Emolument Clause and the Foreign Emolument Clause of the Constitution through his continued ownership interest in The Trump International Hotel in Washington, D.C. and many other businesses that receive payments from domestic and foreign governments. On September 15, 2017, the President filed a Motion to Dismiss, arguing that when the Constitution was ratified the term “emolument” had two distinct meanings – a “narrow” sense limited to “profit arising from an office or employ” and a “broad” sense meaning “benefit, advantage or profit” – and that emolument in the Constitution only referred to the narrow meaning. On April 30, 2019, the district court denied the President’s motion, concluding that the meaning of emolument is “sweeping and unqualified” and includes “any profit, gain or advantage.” Blumenthal v. Trump, 373 F.Supp.3d 191, 207, 212 (D.D.C. 2019). On August 21, 2019, the district court certified its decision for immediate appeal. The appeal is currently set for argument in the D.C. Court of Appeals on December 9, 2019. On October 8, 2019, professors Clark Cunningham and Jesse Egbert filed this amicus brief in support of neither party in the D.C. Court of Appeals, reporting the results of the research described in their forthcoming law review article, Using Empirical Data to Investigate the Original Meaning of ‘Emolument’ in the Constitution, 36 Georgia State Law Review (January 2020), available at SSRN: https://ssrn.com/abstract=3460735. Cunningham and Egbert applied the tools of linguistic analysis to newly available “big data” collections encompassing written language in common usage in the Founding Era to investigate the original public meaning of “emolument” at the time the Constitution was ratified. This data is accessible on the public website of the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. Cunningham and Egbert posed the research question: “Is there evidence that Americans in the Founding Era could have used the word “emolument” to describe revenue derived from ownership of a hotel?” They accessed every text in COFEA in which emolument appeared – over 2800 examples of actual usage – and analyzed all of these texts using three different computerized search methods. Their research results produced several different findings, each of which provided evidence that Founding Era Americans could have used “emolument” to describe revenue derived from ownership of a hotel. Using the word in such a way would have been consistent with what they discovered to be the broad meaning and wide usage of emolument. Further, their research revealed actual examples where “emolument” was specifically used to refer to revenue from ownership interest in a business. When they embarked on this research project, Cunningham and Egbert had no expectation that the results would favor any particular party to this case. Their amicus brief takes no position as to the affirmance or reversal of the District Court’s decision denying Petitioner’s Motion to Dismiss, noting that original public meaning may be only one of many factors taken into account when applying a constitutional text to a current issue. Egbert is a professor of applied linguistics who has authored or co-edited three books and more than 60 peer-reviewed publications. Cunningham is a law professor who has written previously about applying linguistics to the interpretation of legal texts, including Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994), Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm', 73 Washington University Law Quarterly 1159 (1995), and A Linguistic Analysis of the Meanings of 'Search' in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1988).

Survival by Technopreneurialism: Innovation, Imaginaries and the New Narrative of Nationhood in Singapore

Through a consideration of the Singapore government’s moves to encourage citizens to create innovative, high-technology enterprises—or to become ‘technopreneurs’—this essay looks at how government efforts to promote innovation, can articulate with prevailing national and social imaginaries, in ways that reshape notions of citizenship and nationhood and that have potential ramifications for the kinds of risks and burdens that citizens can be asked to bear. I show, specifically, how the new value of innovation is being incorporated into Singapore’s older narrative of national survival in a way that changes this narrative’s mode of emplotment from one of comedy to one of satire. Through this shift, promises of collective prosperity and progress, which are integral to the nation’s founding era of industrial manufacturing-based development, are withdrawn, while new notions of individual and financial risk and reward are introduced. I argue that attending to modes of emplotment may be a useful way to identify the broader entailments of different governments’ innovation policies and programmes.

Tribalism on Campus: Factions, iGen and the Threat to Free Speech

The American college campus is potentially the quintessential marketplace of ideas – the ideal locale for the free and open exchange of concepts and viewpoints, discussion and debate, and the discovery and sharing of knowledge. The setting, however, has not always materialized in that idyllic fashion. Speech freedom on campus, while challenged over time, is being tested by unique influences in the twenty-first century. Now, speakers are disinvited or shouted down, with violent protests sometimes erupting. Fear of trauma abridges classroom discussion. As the nation tribalizes, so do college students – members of iGen, psychologically fragile and raised in a culture of “safetyism.” This article examines the interconnectedness of these issues. It also invokes factions – the tribalism of America’s founding era – and illustrates how James Madison’s approach to control factionalism can be applied to the free speech challenge on the contemporary campus.

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

The presidential oath of office that George Washington took in 1789 prescribed that he “preserve, protect and defend the Constitution of the United States.” It was a command more easily stated than followed because, as Jonathan Gienapp explains in this erudite and provocative volume, it was far from clear what, exactly, Washington and others sworn to office were bound to support. “People were unclear about not only what the Constitution meant but, far more fundamentally, what the Constitution itself actually was” (p. 1, emphasis in original). As an instrument of government, the Constitution was “not fully created when it was written or ratified” (p. 3). Rather, it was “breathtakingly novel” and remained “a profound unknown—when not only its meaning but also its core characteristics were deeply uncertain” (p. 4). That is, those we call the “framers” did not fully know what they had framed. Like Washington, others taking their oaths for federal and state office had to know what the constitution was before they could take a position on how to interpret it. The nature of the constitution would determine its relationship to its language, but Gienapp demonstrates that historical arguments over interpreting its language must be seen in an entirely new context—that of “the indeterminacy of constitutional ontology (uncertainty about the Constitution's basic properties)” that dominated its first decades (p. 341, emphasis in original). Not until its nature was “fixed” would the Constitution be able to give legitimacy to some claims and deny others. Only then could the practices of interpretation proper to such an instrument be debated. Were these rules guiding interpretation to be those used for charters? For compacts? For treaties of confederation? For state constitutions? Were they to follow those used in statutory interpretation? Was constitutional wording to be understood flexibly or narrowly? Should amendments be incorporated into the text where applicable, or appended in a supplement, and did that make any difference?

The Closing of the Constitution

Anyone who picks up a recent volume of the United States Reports or a prominent legal journal will be sure to find judges and lawyers debating, in agonizing detail, the meaning of a particular word or phrase in the Constitution. Marshaling late-eighteenth century dictionaries and legal treatises, records of debates from the drafting and ratifying conventions, and well-thumbed copies of the Federalist Papers, modern constitutional interlocutors will scrutinize text, structure, and history to discern an inherent logic. Above all, although disputants will endlessly contest what a particular provision means, they largely agree on what the Constitution itself is: as Jonathan Gienapp puts it in The Second Creation: Fixing the American Constitution in the Founding Era, “an artifact circumscribed in time and space,” the “fixed Constitution” that we have been collectively dissecting since the late 1780s (10).

Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.