An intellectual historian of America’s founding period, Gienapp is particularly concerned with how the Constitution became an authoritative document in the early years of the Republic. “What kind of an instrument was it?” he asks. Was it intended to be a law, a treaty, or a statute? Was it limited to the powers that it enumerated, or was it meant to convey implied powers? Was it intended to be applied via a process of “excavation,” with lawmakers mining the original text, or “invention,” with lawmakers taking their cues as time and context demanded from the spirit of the founding document? Ultimately, Gienapp shows us, the arguments for excavation and invention converged, a trend that culminated in the debate over the 1795 Jay Treaty between the United States and Britain, which sought to resolve issues lingering from the Revolutionary War. According to Gienapp, the terms of that debate bestowed upon the Constitution an unprecedented “fixed” and “sacred” status—one that, the author contends, we continue to honor to this day.
Gienapp begins his study not with the Constitutional Convention of 1787, as most scholarship on the making of the Constitution does, but instead with the decade after ratification, when the first pressing questions about how to implement the Constitution challenged politicians and the public. Concerned less with the implications and consequences of the policy decisions taken at the time, and more with the ontological evolution that framed the debates over the Constitution’s implementation, Gienapp endeavors to show us the transformation of what he terms “the constitutional imagination” during this first decade of the Republic.
The congressional debates of this period, he argues, transformed the Constitution from a set of “parchment barriers” with an indeterminate set of definitional guidelines to a “fixed,” “archival,” and “sacred text” in which authority became fully tethered to words rather than to the possibility of perpetually open-ended implication. As Gienapp contends, during the early Republic, the Constitution was thereby fixed in two senses: its nature and purpose was clarified and it was firmly established as an object of authority.
Gienapp takes as his conceptual launching pad the “necessary and proper” clause of Article I, which defines the powers and responsibilities pertaining to Congress and over which the Federalists and Anti-Federalists had sustained hotly contested debates. For the Anti-Federalists, the lack of specificity in the wording was cause for concern, since it would inevitably open up the doors for the abuse of executive powers. Was the phrase “necessary and proper” really “unbounded,” “impossible to define,” and thus “vulnerable to misreadings, distortions, and sophistic interpretation of all sorts?” And did this then render the Constitution “susceptible, as the Anti-Federalists derisively claimed, to lawyers’ manipulation,” rather than remain a document accessible to the people?