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).

As Gienapp masterfully demonstrates, however, the “fixed” Constitution to which we are accustomed was not created in 1787 or 1788, it was “invented” in the first decade after ratification (324). At the time that the Constitution was drafted and ratified, no one was quite sure what it was. Was it a written text? Was it a legal text? Was it complete? Did it include rules to guide its interpretation? As Gienapp shows, whatever the ontological confusion, the predominant view was that the Constitution was not a static document. Instead, it represented an open-ended “dynamic system” in which text, custom, policy, and practice “seamlessly blended” to provide a set of governing principles that, as in the British constitutional tradition, were knowable yet mutable (10). Indeed, for many (except perhaps certain Anti-Federalists), the Constitution's indeterminacy was a virtue, because time and experience would remedy the inevitable deficiencies stemming from human fallibility and allow the citizens of the new nation to form a more perfect charter.

So how did we get from an original Constitution of possibility to the fixed, sacred text that we now revere? According to Gienapp, it was largely by accident. In a series of four early congressional debates, federal legislators increasingly mobilized “textualist” and “archival” conceptions of the Constitution to achieve particular political goals. Adoption of these new modes of thinking was not preordained. Indeed, Gienapp believes that they were “entirely optional”; that is, they had no more claim to legitimacy than did prior strands of constitutional understanding (and perhaps had less) (334). Instead, textualist and archival conceptions of the Constitution came to the fore because they could help buttress arguments for interpreting specific provisions of the Constitution in particular ways. For example, those who thought that the president should not have sole authority to remove federal officers pointed to the Constitution's silence on that question, and argued that government authority stopped at the parchment's edge. Similarly, in debates over what later became known as the Bill of Rights, those who wanted post-ratification amendments to be appended to the Constitution argued that incorporating changes into the pre-existing document would rewrite (and destroy) an artifact already in existence. These textual and archival strands of thinking came together in a third debate, over the Bank of the United States. James Madison—haunted by Anti-Federalist fears that the Necessary and Proper Clause gave Congress virtually unlimited powers—resorted to arguments grounded in original intent in order to explain (albeit unsuccessfully) why the Clause did not grant the authority that the Bank's proponents contended. And in the vituperative debate over the Jay Treaty, both sides answered questions about the House of Representatives’ role in treaty making with arguments drawn largely from the constitutional text and the views of those who drafted and ratified it. By 1796, according to Gienapp, the open-ended Constitution had largely closed.

Gienapp's bracing re-telling of a story we know too well has many virtues. The book is elegantly written, as Gienapp deftly forges dramatic narrative out of the often-turgid oratory of congressional debate. It is also a synthetic tour de force. Gienapp imposes intellectual order on rhetorical chaos, impressively weaving dozens of confused and contradictory strands of political argument into a coherent tapestry of constitutional change. And in repeatedly insisting that we step outside our contemporary frame of reference and consider the Constitution the way that the first generation of government expositors did, Gienapp demonstrates that our modern belief in the incompatibility of constitutional fixity and constitutional change is ahistorical, or is at least historically contingent. Many of the insights on this score are arresting. For example, we learn that Madison only proposed constitutional amendments—which he generally disdained—to stave off electoral challenges to his House seat, and advocated for appending such amendments, rather than incorporating them, to dilute their effect. In so doing, he (unintentionally) promoted an understanding of the Constitution in which change to the text did violence to an already-perfected instrument. Similarly, in the Bank debate, Madison and his allies only resorted to arguments grounded in the Constitution's writtenness and the intentions of its drafters because everything else had failed. Although many historians have dissected Madison's moves and motivations in these debates, in Gienapp's hands such anecdotes about early American politics unsettle our very constitutional imagination itself.

The Second Creation’s most notable achievement, however, is that it manages to say something truly new about the formation of the Constitution, which is certainly the most exhaustively examined facet of American history. In capturing the uncertainty surrounding the early Constitution, Gienapp makes common cause with a long line of historians who have sought to depict the Founding in all its complexity, but Gienapp does not simply offer another account of how particular constitutional ideas were contested in late eighteenth century America. Instead, he encourages us to read the early debates in a new register, as an extended argument about the nature of the Constitution itself.

Like all stimulating history, The Second Creation raises as many questions as it answers. As Gienapp forthrightly acknowledges, the book's scope is limited; it focuses exclusively on a handful of early debates in Congress. Gienapp credibly defends this choice; not only do these debates provide a concentrated “laboratory of investigation” for teasing out the Constitution's elusive ontology, they also are arguably the most important depository of early constitutional understandings (13). As Gienapp notes, Congress was the site of the most consequential discussions of constitutional meaning in the post-ratification period. The conclusions that debaters reached about the scope of executive and legislative power under the Constitution established fundamental precedents that reverberate to the present day.

Despite all the good reasons for emphasizing legislative debates, one cannot help but wonder whether Gienapp's tale would look different if he had expanded his vision. If the Constitution had become fixed in Congress by 1796, might a more open-ended version have lived on elsewhere: in the courts, the executive branch, or the public sphere? Gienapp recognizes the importance of exploring these questions, and he expresses hope that new scholarship on constitutional culture in the post-ratification period will help shed light on them. And it is of course poor form to criticize a scholar for not writing a different book than the one he chose to write. But Gienapp's decision to focus exclusively on Congress makes it difficult to assess the persuasiveness of his unstated argument about the relationship between the increasingly ossified understanding of the Constitution in Congress and how the document was understood elsewhere. Gienapp might simply be saying that the congressional debates he illuminates were representative of what we can reasonably assume to be shifting constitutional understandings more broadly. But his argument does not appear to be that modest; his implicit claim seems to be that the emergence of a “fixed” conception of the Constitution in Congress in the 1790s led directly to that view being accepted by “a wide swath of the American political community,” both then and now (9). In other words, arguments in Congress did not just reflect changing understandings of the Constitution; instead, they drove that evolution. That may well be right; given what we know about political culture in the early republic, it seems likely that invocations of a textual and archival Constitution in legislative debate helped shape—and perhaps in turn were shaped by—parallel discussions in newspapers, coffee houses, drawing rooms, and on the streets. But by attending only to proceedings in Congress, Gienapp leaves the reader uncertain as to whether the transformation he describes there was as important to the ascendance of the fixed Constitution as he seems to believe. The debates themselves do not tell us where the impetus for change came from.

At a more fundamental level, one also wonders whether the Constitution's ontological status was as up for grabs as Gienapp suggests. He repeatedly asserts that the textual and archival sense of constitutional fixity that he describes emerged at the confluence of several “entirely optional” interpretive norms (334); what we now understand as the Constitution's “essential features” were in fact “optional, later additions” (4). According to Gienapp's telling, it seems that an entirely different understanding of the Constitution—one consistent with the open-ended British model—could have just as easily taken hold in in the American political imagination. But if that is true, why did the textual and archival Constitution gain pre-eminence so quickly? Seven years seems like a remarkably short time for what Gienapp views as a revolution in constitutional thought (and indeed, by his account, all the elements of the fixed Constitution were present as early as 1791, in the debate over the Bank). At various points in the book, Gienapp acknowledges the swiftness of the change, but never really grapples with its implications.

One inference we might draw from the transformation's rapidity is that the emergence of the fixed Constitution was not as accidental as Gienapp suggests. Indeed, it seems plausible that, as the Founding generation shifted from creating the Constitution to implementing it, political debate necessarily focused more closely on the document's structure and language than on timeless principles. This is all the more true because the American constitution—unlike the quasi-mythical British version—had a singular written document at its core. (Gienapp notes that the states had written constitutions, and suggests that they were interpreted in the British tradition, but he does not purport to comprehensively survey pre-1787 constitutional interpretation.) Given the preponderance of lawyers in the First Congress, an early privileging of textually derived arguments is perhaps not a surprise. There also may have been good political reasons for congressional debaters to try to limit the Constitution's interpretive possibilities. Given the increased partisanship of the 1790s, an open-ended Constitution might have been too dangerous in the hands of political opponents enjoying a legislative majority. As Madison's worries about the dangers of faction became reality, nascent Federalists and Republicans may have come to appreciate the potential benefits of narrowing the constitutional playing field. In short, if a “fixed” notion of the Constitution was not inherent in the document itself, perhaps it was nonetheless inevitable.

In an important sense, it does not matter whether the fixed Constitution was accidental or unavoidable (or something in between). The Second Creation’s masterful telling of the transformation is reason enough to read the book. Yet pondering the reasons why early constitutional understandings shifted so quickly is not just idle curiosity, for there is a weighty elephant lurking in Gienapp's carefully constructed room. Although he does not say so directly, it seems evident that one of Gienapp's purposes in exploring the Constitution's initial indeterminacy is to raise doubts about originalism as a theory of constitutional interpretation. Witness what Gienapp describes as the primary lesson to be drawn from his tale of constitutional contingency: Given the Constitution's initial fluidity, it does not “make much sense to search for any essential set of constitutional practices that could have been hardwired into the Constitution,” because, in Gienapp's view, “the endless search for the original Constitution … will never reveal a fixed document” (334). Although Gienapp's point here is not entirely clear, he seems to be saying that the search for an “original” constitutional meaning—what the Constitution meant when it was enacted—is a fruitless endeavor. Not simply because certain provisions in the text were ill defined or susceptible of multiple interpretations, but because the nature of the Constitution itself was a moving target.

At first blush, Gienapp's narrative of constitutional indeterminacy seems to offer a powerful—if unstated—critique of the originalist project generally. If the drafters and ratifiers could not even agree on what the Constitution was, how could there be any identifiable consensus as to what it said? On closer inspection, however, The Second Creation may provide less fodder than it seems for originalism's critics. First, even if Gienapp is wholly correct that the Constitution's very nature was uncertain at the outset, that may not trouble proponents of originalism's most widely-accepted variant: “original public meaning,” which posits that modern-day constitutional interpreters should read the text as it would have been read by an ordinary person at the time the Constitution was enacted. For most “original public meaning” originalists, the possibility that the framers’ initial approach to constitutional interpretation was eclectic and uncertain is likely irrelevant; originalism is the preferred method of constitutional interpretation not because it aligns with the approach taken by the founders, but because it best promotes important values, such as democratic legitimacy and the rule of law (for a useful overview, see Lawrence B. Solum, Surprising Originalism, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3175412).

The Second Creation might pose a greater challenge for proponents of “original legal methods” originalism: the view that modern constitutional interpreters should apply the methods of legal interpretation that were commonly accepted at the time of the Constitution's enactment. Given Gienapp's persuasive demonstration that no such consensus existed in 1788, the notion that the Constitution has inherent interpretive guidelines seems questionable. But here, too, there may be less than meets the eye. Even if, as Gienapp argues, a specific way of thinking about the Constitution was not “hardwired” into the document initially, the rapid convergence around a limited set of interpretive possibilities might suggest that some modes of constitutional understanding were superior to or in some other way a better fit than others. If nothing else, a closed Constitution provided a more definitive terrain for legislative debate about questions of momentous import. Whether intentional or not, the thinking of representatives in the early Congress may have cohered around a particular understanding of the Constitution simply to make governing more feasible.

To be clear, none of these critiques detract from the importance of Gienapp's accomplishment. If nothing else, judging from the early returns in the blogosphere (see e.g., Balkinization Symposium on Jonathan Gienapp, The Second Creation--Collected Posts, https://balkin.blogspot.com/2018/11/balkinization-symposium-on-jonathan.html), originalist-oriented scholars (and their skeptics) will be wrestling with the book's insights for some time. And for students and scholars of the period, The Second Creation’s absorbing tale of constitutional possibility serves as a powerful reminder of the dynamism and uncertainty that characterized the Founding Era, and encourages us to re-examine received truths about the very nature of our foundational charter. Whether we agree with Gienapp's conclusions or not, for that reason alone The Second Creation stands as a major achievement.