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Written Constitutionalism, Past and Present

Published online by Cambridge University Press:  29 June 2021

Jonathan Gienapp
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Extract

Debates over constitutional originalism almost always center on meaning. Questions are typically focused, concentrated on the meaning of particular constitutional clauses at the moment of their inception: the Commerce Clause in 1787, the Second Amendment in 1791, or the Fourteenth Amendment in 1868. Given the prevalence of these investigations, theoretical and methodological debates over how to recover original constitutional meaning are concentrated on either the kind of meaning that should be targeted—original public meaning, original intended meaning, or original legal meaning—or how that meaning can be recovered—through conventional legal reasoning, corpus linguistics, or thick reconstruction of historical context. Regardless, virtually all originalist theories of meaning uncritically presuppose the nature of the object possessing that meaning: they take as given what the Constitution itself is and, by implication, what it has always been. Although it might not be clear what the Constitution originally meant, it is straightforward what the original Constitution originally was. It just is the Constitution.

Type
Forum: Originalism and Legal History: Rethinking the Special Relationship
Information
Law and History Review , Volume 39 , Issue 2 , May 2021 , pp. 321 - 360
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the American Society for Legal History.

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Footnotes

He thanks Jack Balkin, Mary Bilder, Jud Campbell, Saul Cornell, Mark Graber, Steve Griffin, Jim Hrdlicka, Sandy Levinson, John Mikhail, Richard Primus, Jack Rakove, Arjun Ramamurti, David Schwartz, Calvin TerBeek, Annie Twitty, and members of the Stanford History Department's junior faculty reading group: Rowan Dorin, Kathryn Olivarius, Steven Press, Joel Cabrita, and Greg Ablavsky for helpful comments on this article. Some of the arguments made here were presented at the annual meeting of the American Society for Legal History. The author thanks audience members and, especially, Matthew Steilen for probing commentary.

References

1. For originalist methodology, see Solum, Lawrence B., “Originalist Methodology,” University of Chicago Law Review 84 (2017): 269–95Google Scholar. For historical critiques of originalist methodology, see Gienapp, Jonathan, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review 84 (2015): 935–56Google Scholar; Rakove, Jack N., “Tone Deaf to the Past: More Qualms About Public Meaning Originalism,” Fordham Law Review 84 (2015): 969–76Google Scholar; and Cornell, Saul, “Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning,” Law and History Review 37 (2019): 821–45CrossRefGoogle Scholar.

2. On how debates during the decade following ratification helped forge fundamental constitutional assumptions, see Gienapp, Jonathan, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar.

3. It is important to be clear on what is meant here by legal positivism. As a general matter, legal positivism stipulates that law derives its validity solely from the fact that it has been promulgated by legally authorized bodies. Law, from this view, is a human construction that is distinct from morality and determined based on social facts rather than merit. There are different ways to adopt a positivist orientation toward law, however. One standard way is to believe that law is whatever authorized lawmakers formally enact—which thus places special emphasis on the written commands of those particular legal authorities. As most originalists betray commitment to this kind of legal positivism—to constitutional law rooted in what has been positively written and enacted—that is the sense emphasized here. But there is a different way in which one could draw on legal positivism, which has recently informed the innovative work of originalists William Baude and Stephen Sachs. Rather than focusing principally on positive legal enactment at the Founding, Baude and Sachs follow H. L. A. Hart—the most influential legal positivist of the last half-century-plus—and instead look to social practice. Depending upon how one makes sense of the American Founding, and the legal system it produced, an emphasis on social practice might simply lead one back to the first sense of legal positivism—at the Founding, social facts might indicate that the law was just whatever certain authorized decision makers formally enacted. But if one understands law at the Founding in a different way, an emphasis on social practice could lead in a different direction—away from law-as-positive enactment and toward recognition that other kinds of law, irrespective of whether they were positively enacted, might have acquired the sanction of valid law as a matter of social fact. While, thanks to Baude and Sachs, this alternative form of legal positivism is now important to the originalism debate, the first kind of positivism—that sees law as the positive enactments of authorized lawmakers—has long been essential to originalism in seldom appreciated ways, and thus takes priority here. Discussion of the second kind of positivism that is central to Baude’s and Sachs’s recent work, will have to wait for another day. For Hart's theory, see H. L. A. Hart, The Concept of Law, 3rd ed. (originally published 1961; New York: Oxford University Press, 2012). For Baude and Sachs’s “positive turn” originalism, see Baude, William, “Is Originalism Our Law?” Columbia Law Review 115 (2015): 2349–408Google Scholar; Sachs, Stephen E., “Originalism as a Theory of Legal Change,” Harvard Journal of Law & Public Policy 38 (2015): 817–88Google Scholar; and Baude, William and Sachs, Stephen E., “Grounding Originalism,” Northwestern University Law Review 113 (2019): 1455–91Google Scholar.

4. Despite originalism's diversity, some claim that the theory remains unified, see Solum, Lawrence B., “Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate,” Northwestern University Law Review 113 (2019): 1250–55Google Scholar, 1262–71, whereas others claim the opposite, see Colby, Thomas B. and Smith, Peter J., “Living Originalism,” Duke Law Journal 59 (2009): 239–307Google Scholar.

5. See McGinnis, John O. and Rappaport, Michael B., Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013), 116–38CrossRefGoogle Scholar; McGinnis, John O. and Rappaport, Michael B., “The Constitution and the Language of the Law,” William & Mary Law Review 59 (2018): 1321–412Google Scholar; Lawson, Gary and Seidman, Guy, “Originalism as a Legal Enterprise,” Constitutional Commentary 23 (2006): 47–80Google Scholar; Baude, William and Sachs, Stephen E., “The Law of Interpretation,” Harvard Law Review 130 (2017): 1079–147Google Scholar. For criticisms of these assumptions, see Gienapp, Second Creation, 95–98, 117, 141–42, 281–85; and Cornell, Saul, “The People's Constitution vs. The Lawyer's Constitution,” Yale Journal of Law and the Humanities 23 (2011): 295–337Google Scholar.

6. See, for example, Saikrishna B. Prakash and John C. Yoo, “The Origins of Judicial Review,” University of Chicago Law Review 70 (2003): 887–982. For a strong counter, see Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).

7. I focus exclusively on the original eighteenth-century Constitution and put aside later amendments to it. Although originalists have explored the latter subject in depth—the Reconstruction amendments especially—the bulk of their theorizing has applied to the original Constitution, and, with few exceptions, they deny that later amendments systematically reconstituted the existing Constitution. For one exception, see Akhil Reed Amar, The Bill of Rights: Construction and Reconstruction (New Haven, CT: Yale University Press, 1998).

8. See Andrew W. Coan, “The Irrelevance of Writtenness in Constitutional Interpretation,” University of Pennsylvania Law Review 158 (2010): 1025–46; and Thomas B. Colby, “Originalism and Structural Argument,” Northwestern Law Review 113 (2019): 1303–6.

9. Akhil Reed Amar, “A Few Thoughts on Constitutionalism, Textualism, and Populism,” Fordham Law Review 65 (1997): 1657.

10. Lawrence B. Solum, “The Fixation Thesis: The Role of Historical Fact in Original Meaning,” Notre Dame Law Review 91 (2015): 15, 25–26; Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty, rev. ed. (originally published 2004; Princeton: Princeton University Press, 2014), 102–11; Akhil Reed Amar, “The Document and the Doctrine,” Harvard Law Review 114 (2000): 45–48; and Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: West, 2012), 16. Equating the Constitution with a form of linguistic communication explains the growing fascination with corpus linguistics; see Thomas R. Lee and James C. Phillips, “Data-Driven Originalism,” University of Pennsylvania Law Review 167 (2019): 261–336.

11. Lawrence B. Solum, “Communicative Content and Legal Content,” Notre Dame Law Review 89 (2013): 484–507; and Randy E. Barnett, “The Gravitational Force of Originalism,” Fordham Law Review 82 (2013): 413–17, quote at 413.

12. Solum, “Originalist Methodology,” 286–91; and Randy E. Barnett, “The Misconceived Assumption about Constitutional Assumptions,” Northwestern University Law Review 103 (2009): 617–26.

13. Michael W. McConnell, “The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's ‘Moral Reading’ of the Constitution,” Fordham Law Review 65 (1997): 1280–81; Randy E. Barnett, “An Originalism for Nonoriginalists,” Loyola Law Review 45 (1999): 644–45; and Eric J. Segall, Originalism as Faith (New York: Cambridge University Press, 2018), 91–102.

14. Keith E. Whittington, “Constructing a New American Constitution,” Constitutional Commentary 27 (2010): 119–38; Lawrence B. Solum, “The Interpretation–Construction Distinction,” Constitutional Commentary (2010): 95–118; and Randy E. Barnett and Evan D. Bernick, “The Letter and the Spirit: A Unified Theory of Originalism,” Georgetown Law Journal 107 (2018): 10–18.

15. Randy E. Barnett, “Underlying Principles,” Constitutional Commentary 24 (2007): 413.

16. Steven G. Calabresi and Saikrishna B. Prakash, “The President's Power to Execute the Laws,” Yale Law Journal 104 (1994): 551.

17. Lawrence B. Solum, “Triangulating Public Meaning: Linguistics, Immersion, and the Constitutional Record,” Brigham Young University Law Review 6 (2017): 1626. See also Gary Lawson, “On Reading Recipes…and Constitutions,” Georgetown Law Journal 85 (1997): 1823–36; Saikrishna B. Prakash, “The Misunderstood Relationship Between Originalism and Popular Sovereignty,” Harvard Journal of Law and Public Policy 31 (2008): 485–91.

18. See Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999), 56.

19. Solum, “The Fixation Thesis”; and Lawrence B. Solum, “The Constraint Principle: Original Meaning and Constitutional Practice” (unpublished manuscript). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940215 (accessed October 30, 2020).

20. Whittington, Constitutional Interpretation, 156. See also Mark D. Greenberg and Harry Litman, “The Meaning of Original Meaning,” Georgetown Law Journal 86 (1998): 571.

21. Barnett, Restoring the Lost Constitution, 4, 103, 108.

22. See, for example, Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), 145; Saikrishna B. Prakash, “Unoriginalism's Law Without Meaning,” Constitutional Commentary 15 (1998): 529–46; and Vasan Kesavan and Michael Stokes Paulsen, “The Interpretive Force of the Constitution's Secret Drafting History,” Georgetown Law Journal 91 (2003): 1130–33.

23. On the shift to public meaning originalism, see Jonathan Gienapp, “Constitutional Originalism and History,” Process: A Blog for American History, March 20, 2017. http://www.processhistory.org/originalism-history/ (accessed March 25, 2021); and Keith E. Whittington, “Originalism: A Critical Introduction,” Fordham Law Review 82 (2013): 378–87.

24. Public meaning originalists constantly distinguish between the meaning of the Constitution's words and their application to concrete legal circumstances. See Jack M. Balkin, Living Originalism (Cambridge, MA: Harvard University Press, 2011), 6–7, 12–13, 100–104; Greenberg and Litman, “The Meaning of Original Meaning,” 586–97; Christopher R. Green, “Originalism and the Sense–Reference Distinction,” St. Louis University Law Journal 50 (2006): 555–627; Barnett, “Misconceived Assumption about Constitutional Assumptions”; and Steven G. Calabresi and Julia T. Rickert, “Originalism and Sex Discrimination,” Texas Law Review 90 (2011): 1–2, 9.

25. Colby, “Originalism and Structural Argument,” 1303–6.

26. See, for example, Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 1–35; and Edwin Meese, III, “The Law of the Constitution,” Tulane Law Review 61 (1987): 986. Responses to these criticisms revealed the importance of constitutional text to early originalists; see Thomas C. Grey, “Do We Have an Unwritten Constitution?” Stanford Law Review 27 (1975): 703–18; and John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), ch. 1–2.

27. On how this commitment unites rival forms of originalism, see Solum, “Fixation Thesis,” 7–8; Sachs, “Originalism as a Theory of Legal Change,” 822, 828–29; and John O. McGinnis and Michael B. Rappaport, “Unifying Original Intent and Original Public Meaning,” Northwestern Law Review 113 (2019): 1373.

28. Steven D. Smith, “Reply to Koppelman: Originalism and the (Merely) Human Constitution,” Constitutional Commentary 27 (2010): 192–93, 198–99; and Jeffrey A. Pojanowski and Kevin C. Walsh, “Enduring Originalism,” Georgetown Law Journal 105 (2016): 126–28. On the positivism of modern legal thinking, see Suzanna Sherry, “Natural Law in the States,” University of Cincinnati Law Review 61 (1992): 171–72.

29. Some originalists even expressly draw the analogy, see John O. McGinnis and Michael B. Rappaport, “Unifying Original Intent and Original Public Meaning,” Northwestern Law Review 113 (2019): 1396–99.

30. See Antonin Scalia, A Matter of Interpretation : Federal Courts and the Law (Princeton: Princeton University Press, 1997), 3–47; and beyond that, see Kesavan and Paulsen, “The Interpretive Force of the Constitution's Secret Drafting History,” 1127–33; Scalia and Garner, Reading Law; and Ilan Wurman, A Debt Against the Living: An Introduction to Originalism (New York: Cambridge University Press, 2017), 129–33.

31. Stephen E. Sachs, “Originalism without Text,” Yale Law Journal 127 (2017): 156–69. Sachs's work, along with that of his frequent co-author William Baude, has broken off in a less textualist direction and will be examined in greater depth in forthcoming work. They have diverged from orthodox originalism in refusing to see the Constitution as a discrete text, let alone a form of linguistic communication, opting instead to see the Constitution as a legal enactment embedded in a wider field of preexisting law. In attempting to take seriously what the founding generation took the law to be, they have therefore elected not to see the Constitution in strictly positivist terms. To refer back to the discussion on the distinct varieties of legal positivism in note 3, through a positivist account of the founding, based on the period's own legal-social practice, Baude and Sachs have settled on a distinctive understanding of the original Constitution that places less emphasis on enacted text. See Baude and Sachs, “The Law of Interpretation,” 1137–38; Baude and Sachs, “Grounding Originalism.” However accurately they recapture Founding-Era constitutional assumptions, for our purposes here, they are the exception that proves the rule. Virtually all originalist scholars and jurists remain committed to a text-centered version of originalism.

32. See David A. Strauss, “Does the Constitution Mean What It Says?” Harvard Law Review 129 (2015): 16–20; Richard Primus, “Unbundling Constitutionality,” University of Chicago Law Review 80 (2013): 1081–82, 1090–91; Thomas C. Grey, “The Constitution as Scripture,” Stanford Law Review 37 (1984): 13–17; Andrew W. Coan, “The Foundations of Constitutional Theory,” Wisconsin Law Review (2017): 843–45; and, especially, Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988), 27–37.

33. For a classification of the justifications of this premise, see Coan, “Irrelevance of Writtenness in Constitutional Interpretation,” 1031–46.

34. Michael Stokes Paulsen, “How to Interpret the Constitution (And How Not To),” Yale Law Journal 115 (2006): 2049.

35. Solum, “Originalist Methodology,” 272.

36. United States Constitution, Article VI.

37. See, for example, Akhil Reed Amar, America's Constitution: A Biography (New York: Random House, 2005), 285; Michael Stokes Paulsen, “Does the Constitution Prescribe Rules for Its Own Interpretation?” Northwestern University Law Review 103 (2009): 864–69; and Barnett, “Gravitational Force of Originalism,” 417–18.

38. Paulsen, “Does the Constitution Prescribe Rules for Its Own Interpretation?” 859.

39. Amar, “A Few Thoughts on Constitutionalism, Textualism, and Populism,” 1657.

40. Emphasizing the oath, see Christopher R. Green, “‘This Constitution’: Constitutional Indexicals as a Basis for Textualist Semi-Originalism,” Notre Dame Law Review 84 (2009): 1643–48; and Christopher R. Green, “Constitutional Truthmakers,” Notre Dame Journal of Law, Ethics and Public Policy (2018): 523-24.

41. Green, “‘This Constitution,’” 1674, see esp. 1624–28, 1637–57.

42. Ibid., 1648–53, 1657–68, compare with 1653–57.

43. See Whittington, Constitutional Interpretation, 47–61, 124–27; Richard S. Kay, “Constitutionalism,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (New York: Cambridge University Press, 1998), 27–39; Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (Lanham, MD: Rowman & Littlefield, 1998), 1–39; Kurt T. Lash, “Originalism, Popular Sovereignty, and Reverse Stare Decisis,” Virginia Law Review 93 (2007): 1440–41; and Gary L. McDowell, The Language of Law and the Foundations of American Constitutionalism (New York: Cambridge University Press, 2010), 48–54, 222–26.

44. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–178 (1803).

45. See, for example, Calabresi and Prakash, “The President's Power to Execute the Laws,” 551–52; Michael Stokes Paulsen, “The Irrepressible Myth of Marbury,” Michigan Law Review 101 (2003): 2739–42.

46. Gienapp, Second Creation, 20–23.

47. Two prominent examples are: [Thomas Paine], Four Letters on Interesting Subjects (Philadelphia: Styner and Cist, 1776), 15, 18; and James Iredell to Richard Dobbs Spaight, August 26, 1787, in The Papers of James Iredell, ed. Don Higginbotham, Donna Kelly, and Lang Baradell, 3 vols. (Raleigh: North Carolina Division of Archives and History, 1976), 3:307–9.

48. For a valuable discussion of some of the ways in which these longstanding habits endured, see Kunal M. Parker, Common Law, History, and Democracy in America, 1790-1900: Legal Thought before Modernism (New York: Cambridge University Press, 2011), 67–116.

49. See, for example, Amar, America's Constitution; and Whittington, Constitutional Interpretation, 47–61.

50. Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1660–1830 (Chapel Hill: University of North Carolina Press, 2005), esp. 3–10, 203–6; Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, MA: Harvard University Press, 2004), 186–96; Linda Colley, “Empires of Writing: Britain, America and Constitutions, 1776–1848,” Law and History Review 32 (2014): 243–44; William E. Nelson, The Common Law in Colonial America, Volume IV: Law and the Constitution on the Eve of Independence, 1735–1776 (New York: Oxford University Press, 2018), 155; and Gienapp, Second Creation, 23–35.

51. Nelson, Common Law in Colonial America, 4:6, 150–54; Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition, 1765–1776 (originally published 1972; New York: W. W. Norton, 1991); and Gordon S. Wood, The Creation of the American Republic, 1776-1787 (originally published 1969; Chapel Hill: University of North Carolina Press, 1998), 312–18.

52. Donald S. Lutz, ed., Colonial Origins of the American Constitution: A Documentary History (Indianapolis: Liberty Fund, 1998), xxi–ii; Wood, Creation of the American Republic, 268–69; and Nikolas Bowie, “Why the Constitution Was Written Down,” Stanford Law Review 71 (2019): 1397–508.

53. John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty (Dekalb: University of Northern Illinois Press, 2005), 28–40; Kramer, People Themselves, 9–34; and, more generally, J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (originally published 1957; New York: Cambridge University Press, 1987); and J. W. Gough, Fundamental Law in English Constitutional History (New York: Oxford University Press, 1955), ch. 2–4.

54. Bernard Bailyn, The Ideological Origins of the American Revolution (originally published 1967; Cambridge, MA: Harvard University Press, 1992), 189–93; Mary Sarah Bilder, “Colonial Constitutionalism and Constitutional Law,” in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz, ed. Daniel W. Hamilton and Alfred L. Brophy (Cambridge, MA: Harvard University Press, 2009), 31–36; and Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988), 35–49, 58–63, 98–99.

55. Kramer, People Themselves, 39–41; and Hulsebosch, Constituting Empire, 170–71.

56. Wood, Creation of the American Republic, 271; David Ciepley, “Is the U.S. Government a Corporation? The Corporate Origins of Modern Constitutionalism,” American Political Science Review 111 (2017): 424–27; and Hulsebosch, Constituting Empire, ch. 6. On the overlap between charters and constitutions, see Colley, “Empires of Writing,” 246–47.

57. Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, expanded ed. (originally published 1980; New York: Rowman & Littlefield, 2001), 64–65.

58. Zephaniah Swift, A System of the Laws of the State of Connecticut: In Six Books, 2 vols. (Windham: John Byrne, 1795), 1:57.

59. Barbara A. Black, “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1976): 1157–211, esp. 1198–203.

60. Bailyn, Ideological Origins, 67–77.

61. Declaration of Independence, July 4, 1776.

62. Mary Sarah Bilder, “The Ordeal and the Constitution,” The New England Quarterly 91 (2018): 136–43; Mary Sarah Bilder, “The Emerging Genre of The Constitution: Kent Newmyer and the Heroic Age,” Connecticut Law Review 52 (2021): 1267–68.

63. Gienapp, Second Creation, 61–62.

64. Mary Sarah Bilder, “Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter,” North Carolina Law Review 94 (2016): 1552, 1590.

65. October 14, 1774, Journals of the Continental Congress, 1774–1789, ed. Worthington C. Ford et al., 34 vols. (Washington, DC: Government Printing Office, 1904–1937), 1:67. See also Reid, Ancient Constitution, 28–40; Lutz, Origins of American Constitutionalism, 58–63, 67–69; and Jack P. Greene, The Constitutional Origins of the American Revolution (New York: Cambridge University Press, 2011), 18, 74–75.

66. Silas Downer, A Discourse at the Dedication of the Tree of Liberty (1768), in American Political Writing during the Founding Era, 1760–1805, ed. Charles S. Hyneman and Donald S. Lutz, 2 vols. (Indianapolis: Liberty Fund, 1983), 1:100.

67. For a valuable discussion, see Jud Campbell, “Natural Rights and the First Amendment,” Yale Law Journal 127 (2017): 290–94.

68. “Messieurs Powars and Willis,” Independent Chronicle, Boston, Sept. 4, 1777, 1.

69. Wood, Creation of the American Republic, 291–305.

70. R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Cambridge, MA: Harvard University Press, 2015), 2–4; and Philip Hamburger, “Natural Rights, Natural Law, and American Constitutions,” Yale Law Journal 102 (1993): 922–30.

71. James Wilson, “Lectures on Law,” in Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall, 2 vols. (Indianapolis: Liberty Fund, 2007), 1:529; and Swift, System of the Laws of the State of Connecticut, 1:39.

72. Jud Campbell, “Republicanism and Natural Rights at the Founding,” Constitutional Commentary 32 (2017): 87–90.

73. Campbell, “Natural Rights and the First Amendment,” 253, 290–93; and Bernadette Meyler, “Towards a Common Law Originalism,” Stanford Law Review 59 (2006): 581.

74. Wilson, “Lectures on Law,” 1:523, and more generally 500–25.

75. James R. Stoner, Common Law and Liberty Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992), 5–10; Parker, Common Law, History, and Democracy in America, 70–71.

76. Pocock, Ancient Constitution and the Feudal Law.

77. Wilson, “Lectures on Law,” 1:470. For an insightful reading of how Wilson reconciled the seeming radical break marked by contemporaneous consent with the continuity of customary consent, see Parker, Common Law, History, and Democracy, 89–92.

78. On the “common-law mind,” see David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (New York: Cambridge University Press, 1989), 36–49, 85–87; David Thomas Konig, “James Madison and Common-Law Constitutionalism,” Law and History Review 28 (2010): 509–12; and Stephen A. Conrad, “James Wilson's ‘Assimilation of the Common-Law Mind,’” Northwestern University Law Review 84 (1989): 186–219.

79. William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (Columbia: University of South Carolina Press, 1995), 34–35.

80. Helmholz, Natural Law in Court, 89–93, 96–98; and Thomas C. Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review 30 (1978): 853–54.

81. Kramer, People Themselves, 10–12. The common law and the British constitution were often blended together; see Pocock, Ancient Constitution and the Feudal Law, chs. 2–3; and Hulsebosch, Constituting Empire, 28–32.

82. James Otis, “John Adams's Notes on the First Argument of the Case, Feb. 1761,” in Collected Political Writings of James Otis, ed. Richard Samuelson (Indianapolis: Liberty Fund, 2015), 6.

83. Philanthropos, Maryland Gazette, April 27, 1748, in Exploring the Bounds of Liberty: Political Writings of Colonial British America from the Glorious Revolution to the American Revolution, ed. Jack P. Greene and Craig B. Yirush, 3 vols. (Indianapolis: Liberty Fund, 2018), 2:1221–22; Theophilus Parsons, The Essex Result (1778), in American Political Writing during the Founding Era, 1:487; Swift, System of the Laws, 1:50–51.

84. Grey, “Do We Have an Unwritten Constitution?” 715–16. Crucially, then, Founding-Era Americans presupposed an understanding of fundamental law that distinguished them from standard natural law theorists and modern Dworkinians (those who champion the legal philosophy of Ronald Dworkin).

85. Wood, Creation of the American Republic, 291–305; and William E. Nelson, “The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence,” Michigan Law Review 76 (1978): 928.

86. Publicola [John Quincy Adams], “Letters of Publicola, III,” in Writings of John Quincy Adams, ed. Worthington Chauncey Ford, 7 vols. (New York: Macmillan, 1913–1917), 1:74; also see 86–87, 108.

87. Alexander Hamilton, The Farmer Refuted: or, A More Impartial and Comprehensive View of the Dispute Between Great-Britain and the Colonies (New York: James Rivington, 1775), 38.

88. Gienapp, Second Creation, 50–51; Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), 306–8; and Wood, Creation of the American Republic, 271–73.

89. The following state constitutions included declarations of rights: Virginia (written before its constitution), Delaware (contained in a separate document), Pennsylvania, Maryland, North Carolina, Massachusetts, and New Hampshire (not its provisional constitution written in 1776, but its revised one written in 1784).

90. Publicola [William Paca], “To Aristides,” Maryland Gazette (Annapolis), June 28, 1787, 2.

91. Fabius IV [John Dickinson], Pennsylvania Mercury, April 19, 1788, in The Documentary History of the Ratification of the Constitution, ed. Merrill Jensen, John Kaminski, Gaspare J. Saladino, Richard Leffler, and Charles H. Schoenleber, 34 vols. (Madison: State Historical Society of Wisconsin, 1976–), 17:183–84.

92. Oliver Ellsworth, August 22, 1787, in The Records of the Federal Convention of 1787, ed. Max Farrand, 4 vols. (New Haven, CT: Yale University Press, 1911–1937), 2:376.

93. James Wilson, August 22, 1787, in Records of the Federal Convention, 2:376.

94. Mary Sarah Bilder has demonstrated that Madison's later Convention notes were likely composed at least two years after the fact; Mary Sarah Bilder, Madison's Hand: Revising the Constitutional Convention (Cambridge, MA: Harvard University Press, 2015), ch. 7–9. And important questions have been raised about how the notes defined ex post facto laws; see John Mikhail, “James Wilson, Early American Land Companies, and the Original Meaning of ‘Ex Post Facto,’” Georgetown Journal of Law & Public Policy 17 (2019): 87–89. However, there is no reason to doubt the notes’ portrayal of what these prohibitions implied about the relationship between constitutional text and content.

95. Founding-Era Americans assumed that long-standing fundamental common law rights (including prohibitions against ex post facto laws but also the right to habeas corpus and jury trial) were already inherent in the social contract on which the polity was based. See Jud Campbell, “Judicial Review and the Enumeration of Rights,” Georgetown Journal of Law & Public Policy 15 (2017): 579–80.

96. See, for example, Prakash and Yoo, “The Origins of Judicial Review,” 916–18.

97. Douglas E. Edlin, “Judicial Review without a Constitution,” Polity 38 (2006): 345–50; Kramer, People Themselves, 50–52, 125–27.

98. Mary Sarah Bilder, “The Corporate Origins of Judicial Review,” Yale Law Journal 116 (2006): 502–66; and Philip Hamburger, Law and Judicial Duty (Cambridge, MA: Harvard University Press, 2008).

99. William Michael Treanor, “Judicial Review Before Marbury,” Stanford Law Review 58 (2005): 455–562, esp. 473–97; and Hulsebosch, Constituting Empire, 189–202.

100. Austin Scott, “Holmes vs. Walton: The New Jersey Precedent,” American Historical Review 4 (1899): 456–69, quote at 458. The court's opinion has not been found, but this was the argument made by the defendant's counsel, and the defendant prevailed. Also see Wayne D. Moore, “Written and Unwritten Constitutional Law in the Founding Period: The Early New Jersey Cases,” Constitutional Commentary 7 (1990): 352–58, although Moore problematically treats the various sources of law identified in the case as distinct.

101. James M. Varnum, The Case, Trevett against Weeden… (Providence: John Carter, 1787), 11, 14, 23, 35. For more, see Bilder, Transatlantic Constitution, 188–90.

102. Peter Charles Hoffer, Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review (Lawrence: University Press of Kansas, 2016).

103. Julius Goebel, Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary, 5 vols. (New York: Columbia University Press, 1964–1981), 1:296–306; and Hoffer, Rutgers v. Waddington, 65–71, 77–79. On the law of nations generally, and its importance to the Revolutionary Era, see David M. Golove and Daniel J. Hulsebosch, “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition,” New York University Law Review 85 (2010): 934–46; Peter Onuf and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776-1814 (Madison: University of Wisconsin Press, 1993).

104. Goebel, Law Practice of Hamilton, 1:363, 367–68, emphasis in original. The New York Constitution formally recognized the common law as it stood at the onset of hostilities with Britain; see The Constitution of New York (April 20, 1777), Art. XXXV.

105. Goebel, Law Practice of Hamilton, 1:306–12, 400–405, 418.

106. David M. Golove and Daniel J. Hulsebosch, “The Law of Nations and the Constitution: An Early Modern Perspective,” Georgetown Law Journal 106 (2018): 1595–98, 1605–39; and Casto, Supreme Court in the Early Republic, 130–41.

107. Golove and Hulsebosch, “The Law of Nations and the Constitution,” 1616–23.

108. John Jay's Charge to the Grand Jury of the Circuit Court for the District of New York, April 12, 1790, in The Documentary History of the Supreme Court of the United States, 1789–1800, ed. Maeva Marcus et al., 7 vols. (New York: Columbia University Press, 1985–2007), 2:29.

109. On this point, see Casto, Supreme Court in the Early Republic, 2, 34–35, 157–59, 192–93; Kramer, People Themselves, 42–44.

110. Ware v. Hylton, 3 U.S. (3 Dallas) 199, 255 (1796) (Patterson, J., opinion).

111. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., opinion).

112. Calder v. Bull, 3 U.S. (3 Dallas), 386, 388 (1798) (Chase, J., opinion).

113. In this regard, I disagree with Suzanna Sherry, “The Founders’ Unwritten Constitution,” University of Chicago Law Review 54 (1987): 1167–76.

114. Ware v. Hylton, 3 U.S. (3 Dallas) 199, 223 (1796) (Chase, J., opinion).

115. Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990), 121–61; Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: University Press of Kansas, 1996), 172–99; Gordon S. Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” Washington and Lee Law Review 56 (1999): 801–9.

116. On the emerging emphasis on constitutional writtenness, see Gienapp, Second Creation, ch. 2–7.

117. Campbell, “Republicanism and Natural Rights at the Founding,” 87–90; and Donald S. Lutz, “From Covenant to Constitution in American Political Thought,” Publius 10 (1980): 103–6.

118. John Adams, A Defence of the Constitutions of Government of the United States of America (Philadelphia: Hall and Sellers, 1787), 6.

119. Wilson, “Lectures on Law,” 1:554.

120. David S. Schwartz, “A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism,” Arizona Law Review 59 (2017): 575–79, 581–84; and Richard Primus, “The Limits of Enumeration,” The Yale Law Journal 124 (2014): 578–79, 587–94, 614–19.

121. For more on nationalist constitutionalism at the founding, see Jonathan Gienapp, “In Search of Nationhood at the Founding,” Fordham Law Review 89 (2021): 1783–1813.

122. Jonathan Gienapp, “National Power and the Presidency: Rival Visions of Federalist Constitutionalism at the Founding” (University of Florida Press, forthcoming 2021), 144–45.

123. James Wilson, Considerations on the Bank of North-America (Philadelphia: Hall and Sellers, 1785), 10; Articles of Confederation and Perpetual Union, Article II.

124. Gienapp, “In Search of Nationhood at the Founding”; and John Mikhail, “The Necessary and Proper Clauses,” Georgetown Law Journal 102 (2014): 1096–106, 1121–28.

125. On the bank debate, see Gienapp, Second Creation, ch. 5.

126. John Vining, February 8, 1791, in Documentary History of the First Federal Congress of the United States of America, 4 March 1789–3 March 1791, ed. Linda Grant De Pauw, Charlene Bangs Bickford, Kenneth R. Bowling, and Helen E. Veit, 22 vols. (Baltimore: The Johns Hopkins University Press, 1972–2017), 14:472.

127. Fisher Ames, February 3, 1791, in Documentary History of the First Federal Congress, 14:389. On bank defenders' use of the Preamble, see Jonathan Gienapp, “The Myth of the Constitutional Given: Enumeration and National Power at the Founding,” American University Law Review Forum 69 (2020): 207–9.

128. Chisholm v. Georgia, 2 U.S. 419, 453 (1793) (Wilson, J., opinion).

129. Chisholm v. Georgia, 2 U.S. 419, 465, 470 (1793) (Wilson, J. and Jay, J., opinions).

130. For a fuller discussion, see Gienapp, “In Search of Nationhood at the Founding.”

131. On the rise of the Republican opposition, see Gordon S. Wood, An Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Cambridge University Press, 2009), 140–73.

132. For more, see Jonathan Gienapp, “In Search of Nationhood at the Founding”; and Campbell, “Republicanism and Natural Rights at the Founding,” 109–11.

133. Thomas Jefferson, “Resolutions Adopted by the Kentucky General Assembly,” November 10, 1798, in The Papers of Thomas Jefferson, ed. Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and James P. McClure, 45 vols. (Princeton: Princeton University Press, 1950–), 30:550.

134. On compact theory, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: University of North Carolina Press, 1999), 237–45; Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (New York: Cambridge University Press, 2008), 190–234.

135. For Madison's ratification arguments, see James Madison, “The Federalist 39,” in Documentary History of the Ratification of the Constitution, 15:380–86.

136. James Madison, “Virginia Resolutions,” December 21, 1798, in The Papers of James Madison, Congressional Series, ed. William T. Hutchinson, William M. E. Rachal, and Robert Allen Rutland, 17 vols. (Chicago: University of Chicago Press, 1977–1991), 17:189.

137. Ibid.

138. James Madison, “The Report of 1800,” in Papers of Madison, 17:309

139. Ibid., 17:315.

140. See, for example, Scalia, A Matter of Interpretation, 3–47; Kesavan and Paulsen, “The Interpretive Force of the Constitution's Secret Drafting History,” 1127–33; Barnett, “The Misconceived Assumption about Constitutional Assumptions.” A minority of originalists claim that original meaning is tethered to original interpretive methods, although their assumptions about methods are problematic; see Gienapp, Second Creation, 116–23.

141. On constitutional backdrops, see Stephen E. Sachs, “Constitutional Backdrops,” George Washington Law Review 80 (2012): 1813–88.

142. Gienapp, “The Myth of the Constitutional Given,” 183–85, 210–11.

143. William Baude and Stephen E. Sachs, “Originalism and the Law of the Past,” Law and History Review 37 (2019): 809–20. For an attempt to distinguish legal meaning from historical meaning, see Lawrence B. Solum, “Intellectual History as Constitutional Theory,” Virginia Law Review 101 (2015): 1111–64. For a critique of originalist efforts to escape history through law, see Jack M. Balkin, “Lawyers and Historians Argue About the Constitution” (unpublished manuscript), 28–37. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3670280 (accessed November 17, 2020).

144. See, for example, Whittington, Constitutional Interpretation, 15; Barnett, Restoring the Lost Constitution, 389–95; Lawson, “On Reading Recipes…and Constitutions,” 1823–25; Kesavan and Paulsen, “The Interpretive Force of the Constitution’s Secret Drafting History,” 1127–33; Prakash, “Misunderstood Relationship Between Originalism and Popular Sovereignty,” 485–91; Green, “Constitutional Truthmakers.”

145. Balkin, Living Originalism.