TURNING THE CONSTITUTION INTO A TEXT:

RETHINKING THE ORIGINS OF WRITTEN CONSTITUTIONALISM IN THE UNITED STATES

2017 American Society for Legal History Annual Conference
October 27, 2017
Como citar este estudo:
GIENAPP, Jonathan. “Turning the Constitution into a Text: Rethinking the Origins of Written
Constitutionalism in the United States.” Comunicação na American Society for Legal History -
Annual Meeting, October 27, 2017. Paper inédito. PDF em mensagem recebida por
jpima2001@yahoo.fr em 12 out 2017. E-mail do remetente: jgienapp@stanford.edu
JONATHAN GIENAPP
STANFORD UNIVERSITY

In the wake of the Declaration of Independence, Americans spoke easily about the radical

transformation that they were convinced they had wrought. This seemed particularly true when it

came to the character of their constitutional order, for so unshakably confident were they in its

novelty, that they christened their creation a “novus ordo seclorum” (a new order of the ages).1

Often, because of these sorts of characteristically extravagant claims, most scholars—

constitutional lawyers, historians, and political scientists alike—have assumed that Americans

invented a brand new breed of constitutionalism. And they have supposed that at the center of

this American constitutional revolution lay a single innovation in constitutional design: the

written constitution. The importance of this lone development seemingly cannot be overstated.

Whatever else might be said of American constitutionalism—and especially the Federal

Constitution of 1787 that became its enduring embodiment—what seems clear is that its defining

characteristic is that it is written.

Indeed, this feature is often treated as the essence of American constitutional DNA. It is

nearly impossible to study Supreme Court opinions or American constitutional treatises, or to

read commentators debate the Constitution or limn its character, without seeing this foundational

1
Journals of the Continental Congress, 1774-1789, ed. Worthington C. Ford et al., 34 vols. (Washington, D. C.,
1904-1937), XXII: 340-341.

1
assumption in action. As leading constitutional theorist Jack Balkin has asserted, “The American

Constitution is a written constitution….All constitutions create constraints….[but a] written

constitution is distinctive because it contains linguistic constraints found in the constitutional

text.”2 “It is precisely the written Constitution as higher law,” Gary McDowell has added, “that

makes the American constitutional order original in the history of the world.”3 This cardinal

characteristic has seemed so central because it fundamentally frames how interpreters can

credibly use the Constitution. As “the Constitution is a written text,” Keith Whittington has

explained, “certain interpretive approaches are implicated….Any theory of constitutional

interpretation must be able to account for the major institutional fact of American

constitutionalism, the presence of a written constitution.”4 Exemplifying this point in his

distinctively caustic style, the late Supreme Court Justice Antonin Scalia reminded constitutional

interpreters that it was, after all, a “text that we are supposedly construing.”5 No matter, then,

what distinguishes the various and endlessly proliferating theories of American constitutional

interpretation—whether they demand that the Constitution should be interpreted in accordance

with its original meaning or that its meaning changes with the times—virtually all are predicated

on the supposition that the Constitution is fundamentally a written text.6

2
Jack M. Balkin, Living Originalism (Cambridge: Harvard University Press, 2011), 35, 41.
3
Gary L. McDowell, The Language of Law and the Foundations of American Constitutionalism (New York:
Cambridge University Press, 2010), 49.
4
Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review
(Lawrence: University Press of Kansas, 1999), 48.
5
Antonin Scalia, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts and the
Law,” in A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), 39,
emphasis mine.
6
This obsession is especially pervasive among constitutional lawyers, most of all originalists, whose theory is
predicated on the assumption that American constitutions, by virtue of being written, inescapably carry with them
certain logical properties that thereby privilege certain interpretive approaches. See, e.g., Whittington, Constitutional
Interpretation; “Richard S. Kay, “Constitutionalism,” in Constitutionalism: Philosophical Foundations, ed. Larry
Alexander (New York: Cambridge University Press, 2001), 27-39; Randy E. Barnett, Restoring the Lost
Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), esp. ch. 2; Akhil Reed
Amar, “The Document and the Doctrine,” Harvard Law Review 114 (Nov. 2000), 26-134; Michael Stokes Paulsen,
“How to Interpret the Constitution (and How Not To),” Yale Law Journal 115 (Jun. 2006), 2037-2066; Kurt T. Lash,

2
 No less significant, the importance of this feature typically rests on a historical account of

its origins; that this essential characteristic came hardwired into American constitutionalism from

the very beginning. As Akhil Reed Amar has claimed, “the very concept of a written

Constitution forms part of our national language and lies at the heart of our national birth-story.”7

For, as another has put it, the American founding generation, “perceived the need to fix the

inherited fundamental principles of government in a clear and permanent text.”8 This turn to

written constitutionalism was so distinctive and intentional because it ostensibly marked a radical

historical break, one neatly summed up in 1795 by Supreme Court justice, William Paterson:

It is difficult to say what the constitution of England is; because, not being reduced to
written certainty and precision, it lies entirely at the mercy of parliament…in England
there is no written constitution, no fundamental law, nothing visible, nothing real, nothing
certain….In America the case is widely different: every state in the Union has its
constitution reduced to written exactitude and precision. 9

In writing constitutions down, the thinking goes, Americans expressly differentiated their

creations from the unwritten British Constitution they had formerly known. Where previously a

constitution had been descriptive and customary—embodying merely a working account of how

government operated in practice—it was now prescriptive and codified—drawing bright textual

“Originalism, Popular Sovereignty, and Reverse Stare Decisis,” Virginia Law Review 93 (Oct. 2007), 1437-1482;
McDowell, Language of Law, 49-54, 222-226; Balkin, Living Originalism, 35-41; Antonin Scalia and Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: West, 2012); and John O. McGinnis and Michael
B. Rappaport, Originalism and the Good Constitution (Cambridge: Harvard University Press, 2013). But crucially,
beyond originalists, most constitutional lawyers also concede the primacy of this foundational assumption, if not
necessarily the interpretive inferences that are said to follow from it. See, e.g., Benjamin F. Wright, Jr., “The Early
History of Written Constitutions in America,” in Essays in History and Political Theory in Honor of Charles
Howard McIlwain, ed. Carl Wittke (Cambridge: Harvard University Press, 1936); “Symposium: Is There an
Unwritten Constitution?,” Harvard Journal of Law & Public Policy 12 (Winter 1989), 1-126; Ronald Dworkin,
Law’s Empire (Cambridge: Harvard University Press, 1986); Sotirios A. Barber and James E. Fleming,
Constitutional Interpretation: The Basic Questions (New York: Oxford University Press, 2007); Laurence H. Tribe,
The Invisible Constitution (New York: Oxford University Press, 2008); Andrew B. Coan, “The Irrelevance of
Writtenness in Constitutional Interpretation,” University of Pennsylvania Law Review 158 (Mar. 2010), 1025-1092;
James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (New
York: Oxford University Press, 2015).
7
Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (New York:
Basic Books, 2012). xii.
8
Whittington, Constitutional Interpretation, 50.
9
Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 C.C.D.Pa. (1795).

3
lines demarcating what government could lawfully do. The act of systematizing constitutions via

language thus ensured that Americans would practice and think about constitutionalism in

wholly new ways. Such was seemingly what John Marshall, chief justice of the Supreme Court,

meant when he famously wrote in the court’s 1803 opinion in Marbury v. Madison, it must not

be “forgotten, the Constitution is written.”10

But Paterson’s testimony comes from 1795 and Marshall’s from 1803. Did the shear act

of writing constitutions down—a process that began in 1776 with the first state constitutions—

immediately compel Americans to think and talk this way? For many, that has been the

assumption. Starting with independence, it has been said, “Americans consciously rejected the

ambiguity and uncertainty of…the English Constitution by opting for the precision of that

radically new form: the written constitution.”11 So while “Britain has long lived under an entirely

‘unwritten Constitution,’” in contrast, “ever since 1776, America has rejected this British

model.”12 More careful scholars of early American constitutional development have shown a far

messier process, emphasizing how it took searching debate over the new state constitutions

before American constitutional disputants grasped the full implications of writing constitutions

down. But, nonetheless, it is widely presumed that this process was completed by the time the

Federal Constitution was drafted in the summer of 1787.13 All differences aside, then, it is more

or less orthodoxy that the supreme fundamental law of the United States was born a written text.

10
Marbury v. Madison, 5 U.S. 137 (1803).
11
Whittington, Constitutional Interpretation, 52.
12
Amar, America’s Unwritten Constitution, xii.
13
It remains more or less orthodoxy among historians and legal scholars alike that, in turning to written
constitutions, Americans decisively broke with their British constitutional heritage. The leading account remains,
Gordon S. Wood, The Creation of the American Republic, 1776-1787, rev. ed. (Chapel Hill: University of North
Carolina Press, 1969; 1998), see 259-343, 593-615. Also see Donald S. Lutz, Popular Consent and Popular
Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press,
1980); Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State
Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980); Gerald Stourz,
“Constitution: Changing Meaning of the Term from the Early Seventeenth to the Late Eighteenth Century,” in

4
 But what this historical portrait obscures is the vast difference between, on the one hand,

the act of writing constitutions down and, on the other, the acquisition of a written constitutional

imagination. The two are all too often conflated when they must be held apart. For a written

constitutional consciousness only emerged when Americans began imagining their constitutions

in a specific kind of way, as more than systems of constitutive powers but instead fundamentally

as texts, as objects whose contents were defined and boundaries limned by language itself.

Critically, this consciousness did not immediately or even necessarily follow the shear act of

writing constitutions down. And, despite what so many have suggested, it certainly was not in

place by 1787 when the Federal Constitution was drafted. Indeed, it was only after that

Constitution was submitted to the states for ratification that a written constitutional

consciousness began to emerge in earnest—that constitutional disputants began thinking like a

text. Therefore, the story of how the Constitution became a text—and the story of how it became

possible that so many commentators could later fetishize the putative implications of its

writtenness—owes less to anything about the Constitution’s inherent character, than to how its

first generation of users contingently reimagined its distinctive properties.

Conceptual Change and the Constitution, eds. Terence Ball and J. G. A. Pocock (Lawrence: University of Kansas
Press, 1988), 35-54; Michael Warner, The Letters of the Republic: Publication and the Public Sphere in Eighteenth-
Century America (Cambridge: Harvard University Press, 1990), ch. 4; Sylvia Snowiss, Judicial Review and the Law
of the Constitution (New Haven: Yale University Press, 1990), chs. 1-2; Philip A. Hamburger, “Natural Rights,
Natural Law, and American Constitutions,” The Yale Law Journal 102 (1993), 907-960; David E. Kyvig, Explicit
and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (Lawrence: University Press of Kansas, 1995), ch.
1; Christopher Looby, Voicing America: Language, Literary Form, and the Origins of the United States (Chicago:
University of Chicago Press, 1996); Marc W. Kruman, Between Authority and Liberty: State Constitution Making in
Revolutionary America (Chapel Hill: University of North Carolina Press, 1997); John Howe, Language and
Political Meaning in Revolutionary America (Amherst: University of Massachusetts Press, 2004), 38-39, 54-62;
Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005); Christian Fritz,
American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (New York:
Cambridge University Press, 2008); and Jack N. Rakove, Revolutionaries: A New History of the Invention of
America (Boston: Houghton Mifflin, 2010), ch. 4. Disagreement mostly hinges on timing: for a slower
transformation, see Wood, Creation of the American Republic; and Rakove, Revolutionaries; for a more rapid one,
see Kruman, Between Authority and Liberty.

5
 A full account of how Americans came to view their Constitution as a linguistic object,

and in turn came to terms with its makeup, would require probing the full decade after the

Constitution was drafted—and the numerous debates through which the character of the nation’s

fundamental law was transformed. But the first step is to see why such explosive post-1788

change was even possible in the first place. Which means recovering the early dynamism of

American constitutional imagination by appreciating how—between 1776 and 1788—language

enjoyed only an uncertain relationship to American constitutionalism and, from there, how this

confused relationship betrayed an even deeper uncertainty: that even after the Constitution was

drafted and adopted, it still remained decidedly unclear what kind of thing it was and,

accordingly, how users could credibly use and describe it. As, beneath disagreements about

constitutional meaning and function, so many accounts of constitutionalism begin with certain

assumptions about what the Constitution most fundamentally is, it is essential to appreciate that

many of those understandings—whether bolstered by logic or history—are not as essential as so

many so often assume.

I. Refusing to Think Like a Text

Prior to the dawn of the ratification debates in the fall of 1787, the act of reducing

constitutions to writing in the newly independent United States had failed to bring forth a full-

bodied written constitutional consciousness. No matter what else emerged between 1776 and

1787, a distinctly textualist brand of constitutional imagination was not among them.

For starters, even though British constitutional authority collapsed in America in 1776, its

past presence lingered in powerful ways. 14 Most constitutional habits carried over for two

14
A minority has downplayed such a rupture between British and American constitutionalism, often specifically
challenging the importance that written constitutions have been afforded. See e.g. Larry D. Kramer, The People

6
principal reasons. First, under the British Constitution, American thinkers had already learned to

talk and think about constitutions as supreme, fundamental standards. They did not have to

invent fundamental constitutions (as some have implied), for they had never known anything

else. Even though the British Constitution was partly descriptive (that is, a description of how

power was actually constituted in the realm—divided between King, Lords, and Commons), it

was also concurrently prescriptive (as much a collection of fixed principles discoverable in the

history and practice of government). The constitution was understood to be a fundamental

standard set above rulers.15 As James Otis put it in 1764, “acts against the fundamental principles

of the British Constitution are void.” 16 Second, while the British Constitution was largely

unwritten and customary—and thus had no concrete physical or temporal embodiment—it still

offered a commanding framework through which all political and legal argument was organized.

British subjects, colonial Americans especially, appealed to the British Constitution with

frequency and conviction, betraying an evident confidence that others knew what they were

talking about.17 As John Adams wrote in the midst of the imperial crisis with Britain, “There has

Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004); Daniel J.
Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World,
1664-1830 (Chapel Hill: University of North Carolina Press, 2005); Philip Hamburger, Law and Judicial Duty
(Cambridge: Harvard University Press, 2008); James R. Stoner, Jr., Common Law and Liberal Theory: Coke,
Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992); Bernadette
Meyler, “Towards a Common Law Originalism,” Stanford Law Review 59 (Dec. 2006), 551-600; and Eric Nelson,
The Royalist Revolution: Monarchy and the American Founding (Cambridge: Harvard University Press, 2014).
15
J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the
Seventeenth Century, reissued ed. (New York: Cambridge, 1957; 1987), 36-41; J. W. Gough, Fundamental Law in
English Constitutional History (New York: Oxford University Press, 1955), ch. 1; John Phillip Reid, Constitutional
History of the American Revolution: Abridged Edition (Madison: University of Wisconsin Press, 1995), 7; John
Phillip Reid, Rule of Law: The Jurisprudence of Liberty in the Seventeenth and Eighteenth Centuries (DeKalb:
Northern Illinois University Press, 2004); Kramer, People Themselves, 14-18; John Phillip Reid, The Ancient
Constitution and the Origins of Anglo-American Liberty (DeKalb: Northern Illinois University Press, 2005), ch. 3-5;
Hulsebosch, Constituting Empire, 36-37; and Hamburger, Law and Judicial Duty, chs. 1-8.
16
James Otis, The Rights of the British Colonies Asserted and Proved (Boston: Edes and Gill, 1764), 72.
17
See John Phillip Reid, Constitutional History of the American Revolution, 4 vols. (Madison: University of
Wisconsin Press, 1986-1993); Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the
Empire (Cambridge: Harvard University Press, 2004); Hulsebosch, Constituting Empire; Jack P. Greene, The
Constitutional Origins of the American Revolution (New York: Cambridge University Press, 2011); and Craig

7
been much inquiry and dispute about the essentials and fundamentals of the constitution, and

many definitions and descriptions have been attempted…Yet I cannot say, that I am at any loss

about any man’s meaning when he speaks of the British constitution, or of the essentials and

fundamentals of it.”18

At first, therefore, the American Revolutionaries thought their new constitutions were

fundamental legal authorities simply because they were constitutions. As petitioners in Pittsfield,

Massachusetts asserted in the spring of 1776, “the first step to be taken by a people in such a

state for the Enjoyment or Restoration of Civil Government…is the formation of a fundamental

constitution.”19 That these new constitutions were written did not mark a striking departure.

Many features of the British Constitution, especially the imperial constitution Americans knew

best, had been textual, as colonists had routinely underscored the importance of their written

charters and the political compacts that those formed. As James Iredell (eventual Supreme Court

justice from North Carolina) had written in 1773, “I have always been taught…that the

constitution of this country is founded on the provincial charter, which may well be considered

as the original contract between the King and the inhabitants.”20 But these documents had always

been embedded in a wider, more dynamic, more diffuse constitutional field. As John Dickinson

had explained in 1766, “charters were declarations but not gifts of liberties.” Liberty was “not

annexed to us by parchments and seals.” These texts enjoyed power precisely because they

Yirush, Settlers, Liberty, and Empire: The Roots of Anglo-American Political Thought, 1675-1775 (New York:
Cambridge University Press, 2011).
18
The Earl of Clarendon to William Pym III, January 27, 1766, in The Papers of John Adams, ed. Robert J. Taylor,
15- vols. (Cambridge: Harvard University Press, 1977-), I: 165.
19
Pittsfield Petitions, May 29, 1776, in The Popular Sources of Political Authority: Documents on the
Massachusetts Constitution of 1780, eds. Oscar and Mary Handlin (Cambridge: Harvard University Press, 1960), 90.
20
James Iredell, “Essay on the Court Law Controversy,” September 10, 1773, in The Papers of James Iredell, eds.
Don Higginbotham, Donna Kelly, and Lang Baradell, 3 vols. (Raleigh: North Carolina Division of Archives and
History, 1976-), 1: 164.

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rested on non-textual sources of authority. Their textuality was at once essential and, on its own,

insignificant.21

That does not mean nothing changed. To the contrary, between 1776 and 1787 American

constitutional understanding dramatically transformed. Through searching debate, Americans

placed new emphasis on how constitutions needed to be formed—stressing constitutional

conventions, the importance of consent, and a refined understanding of popular sovereignty. As a

result of the developments, they more studiously distinguished constitutional from ordinary law

and prescriptive from descriptive constitutionalism.22 As an anonymous Philadelphia

pamphleteer put it, “A Constitution, and a form of government, are frequently confounded

together, and spoken of as synonimous things.” But “whereas they are not only different, but are

established for different purposes: All countries have some form of government, but few, or

perhaps none, have truly a Constitution.” “The government,” Alexander Hamilton declared

matter-of-factly, “is the mere creature of the constitution.”23 But, far-reaching as these changes

were, none of them immediately led Americans to talk about their new constitutions principally

as linguistic objects or to place novel emphasis on constitutional language.

*****

This is striking given that the subject of language otherwise attracted sustained attention.

In many corners of the 18th-century world the prospect of linguistic instability haunted

21
[John Dickinson], An Address to the Committee of Correspondence in Barbados (Philadelphia: William Bradford,
1766), 4. On charters, see Bailyn, Ideological Origins, 189-193; Reid, Constitutional History: Authority of Rights,
ch. 19; John Phillip Reid, Constitutional History of the American Revolution: The Authority to Tax (Madison:
University of Wisconsin Press, 1987), 57-60, ch. 9; John Phillip Reid, Constitutional History of the American
Revolution: The Authority to Legislate (Madison: University of Wisconsin Press, 1991), ch. 13; Bushman, King and
People, 11-14, 102-103, 111-114; Yirush, Settlers, Liberty, and Empire, 72-73, 153-154, 187-189; Nelson, Royalist
Revolution, 34-36, 46-54, 99-104.
22
See Wood, Creation of the American Republic, 306-389; also see Edmund S. Morgan, Inventing the People: The
Rise of Popular Sovereignty in England and America (New York: W.W. Norton, 1988), chs. 7-11; Rakove, Original
Meanings, ch. 5; and Fritz, American Sovereigns, chs. 2-4.
23
Alexander Hamilton, A Second Letter from Phocion, April, 1784, in The Papers of Alexander Hamilton, ed.
Harold C. Syrett, et al., 27 vols. (New York: Columbia University Press, 1961-1981), III: 548-551.

9
rhetoricians, grammarians, and philosophers. Linguistic theorists had complained about the

mutability and instability of language and had hoped to “fix” linguistic meaning once and for all,

thus precluding users from distorting or manipulating language and curtailing the confusion and

uncertainty that typically followed. 24 The eighteenth century witnessed an outpouring of

dictionaries and grammatical treatises devoted to this end. Few were more committed than

Jonathan Swift, the Irish-born writer and satirist, who craved “some Method [that] should be

thought on for ascertaining and fixing our Language for ever…For I am of Opinion, it is better a

Language should not be wholly perfect, than it should be perpetually changing.” 25 Not all

linguistic reformers were sanguine about the prospects, though. Despite his hope that his

dictionary would “fix our language, and put a stop to those alterations which time and chance

have hitherto suffered to make in it without opposition,” Samuel Johnson could not help but

admit that there was not “a nation that has preserved their words and phrases from mutability.”

There was no way “to embalm…language, and secure it from corruption and decay.”26 Language

inexorably changed through usage as social and cultural development shaped it into new forms.

Contrary to the longstanding hopes of linguistic reformers, perhaps language was historical, not

universal, in character.

There were also grave epistemological concerns about language’s capacity to mirror

reality or ideas in the mind. As Thomas Hobbes had controversially asserted in Leviathan, “All

we can infer is whether or not we are combining the names of things in accordance with the

arbitrary conventions which we have laid down in respect of their meaning.” Because of this

provenance, “all the significations of almost all words, are…ambiguous; and may be drawn in

24
For more, see Howe, Language and Political Meaning; Caleb Nelson, “Originalism and Interpretive
Conventions,” University of Chicago Law Review 70 (Spring 2003), 519-598, 530-534; and Murray Cohen, Sensible
Words: Linguistic Practice in England, 1640-1785 (Baltimore: The Johns Hopkins University Press, 1977).
25
Jonathan Swift, A Proposal for Correcting, Improving, and Ascertaining the English Tongue (London: 1712), 31.
26
Samuel Johnson, A Dictionary of the English Language, I: 9.

10
argument, to make many senses.” 27 Untethered from firm, natural referents, words could be

perpetually bent into new and diverse shapes. Nobody explored the subject as penetratingly as

did John Locke, who, in his widely-read Essay Concerning Human Understanding, turned

tentative doubts about linguistic perspicuity into a full-blooded analysis. “[T]he very nature of

words,” he wrote, “makes it almost unavoidable for many of them to be doubtful and uncertain in

their signification.” Such linguistic indeterminacy carried alarming political and social

implications. “In the interpretation of laws, whether divine or human,” he warned, “there is no

end.” Given that language wiggled free, as Locke put it, from any “authority” that might

plausibly “establish the precise signification of words,” so too might humans use language to

wiggle free from any obligations that language itself might otherwise place on them. 28

These far-ranging meditations influenced many Americans, instilling in them similar

hopes and fears. Following independence, there were hopeful calls for linguistic reform. 29

Writing to Congress in 1780, for instance, John Adams called for a “public institution for

refining, correcting, improving, and fixing the English Language.” To ensure that Americans’

linguistic usage remained pure, it was necessary “to have a public Standard for all persons in

every part of the Continent to appeal to,” something only a dedicated academy could establish

and enforce.30 Shortly thereafter, Noah Webster, the nation’s leading lexicographer, advanced

similar hopes, arguing in his 1783 Grammatical Institute that the United States enjoyed “the

fairest opportunity of establishing a national language, and of giving it uniformity and

27
Thomas Hobbes, Leviathan, ed. Richard Tuck (New York: Cambridge University Press, 1996), 194. For more, see
see Philip Pettit, Made with Words: Hobbes on Language, Mind, and Politics (Princeton: Princeton University
Press, 2008); Stewart Duncan, “Hobbes on Language: Propositions, Truth, and Absurdity,” in The Oxford Handbook
of Hobbes, eds. A. P. Martinich and Kinch Hoekstra (New York: Oxford University Press, 2016), 60-75.
28
John Locke, An Essay Concerning Human Understanding, ed. by Roger Woolhouse (New York: Penguin, 1997),
Book III, Ch. 9, Sects. 1, 9, 8. For more, see Hannah Dawson, Locke, Language, and Early Modern Philosophy
(New York: Cambridge University Press, 2007), chs. 5-10.
29
Howe, Language and Political Meaning, 27-37.
30
John Adams to the President of Congress, September 5, 1780, in The Papers of John Adams, ed. Robert J. Taylor,
15- vols. (Cambridge: Harvard University Press, 1977-), X: 128, 127.

11
perspicuity…that ever presented itself to mankind.”31 But, much like those who preceded them,

American thinkers expressed as much doubt as confidence. Further reflection led Webster to

liken fixing language to “fixing a light house on a floating island.” 32 Meanwhile, the

Massachusetts jurist, James Sullivan, thought linguistic meaning needed to be “clear, precise and

uniform,” but worried if “the imperfection of all language” would ever allow it. Indeed, “so

vague are all the forms of expression ever yet hit upon,” he worried, “that the best we can do is

affix, as well as we can, appropriate meanings to certain expressions,” knowing full well that as

people used language they were liable to alter its meaning. 33

Hopes and doubts aside, the crucial point is that language (and its capacity to convey

stable meaning and regulate social order) received concerted attention in Revolution America.

Strikingly, though, few thinkers linked these more general grammatical and epistemological

issues to the specific subject of written constitutions, even though the matter seemed ripe for

examination and many of the young nation’s leading constitutional writers otherwise drove

conversation on linguistic reform. Fixing linguistic meaning marked an urgent problem, just not

one that spilled over into the realm of constitutional meaning. While some commentators

expressly connected the two, in the vast majority of instances, those who confronted the problem

of constitutional language prior to 1787 revealingly eschewed the matter.34

This evasion played out in several revealing sites, one being the state constitutions’

declaration of rights. Seven of the new state constitutions were prefaced by declarations of rights,

31
Noah Webster, Dissertations on the English Language (Boston: Isaiah Thomas and Company, 1789), 36. On
Webster’s project, see Jill Lepore, A Is for American: Letters and Other Characters in the Newly United States
(New York: Alfred A. Knopf, 2002), ch. 1; and Michael Kramer, Imagining Language in America: From the
Revolution to the Civil War (Princeton: Princeton University Press, 1991), ch. 1.
32
Webster, Dissertations on the English Language, 25.
33
Zenas [James Sullivan], Independent Chronicle, April 27, 1786, 1.
34
For examples of this engagement, see e.g. James Madison to Edmund Randolph, March 10, 1784, The Papers of
James Madison, ed. William T. Hutchinson, 10 vols. (Chicago: University of Chicago Press, 1962-1977), VIII: 3-4;
Thomas Jefferson, “Annotated Copy of Franklin’s Proposed Articles of Confederation,” The Papers of Thomas
Jefferson, ed. Julian P. Boyd, et al., 38- vols. (Princeton: Princeton University Press, 1950-), I: 181.

12
documents that contemporaneously elicited celebration and pride and that have since been cited

as forerunners to the later federal Bill of Rights. Even though they seemingly enumerated

constitutional rights in text, in many ways they were an extension of the decidedly non-textualist

constitutional outlook Alexander Hamilton had articulated: “The sacred rights of mankind are

not to be rummaged for, among old parchments or musty records. They are written, as with a

sunbeam, in the whole volume of human nature.”35 Declarations of rights were merely reminders,

not sources, of this deeper inscription. This had been conventional among British declarations—

Magna Charta and the Declaration of Rights of 1689—and the hundreds of similar texts that

colonial Americans had drawn up to accompany their governing charters—such as the

Massachusetts Body of Liberties (1641), New York’s Charter of Liberties and Privileges (1683),

and the Pennsylvania Charter of Liberties (1701). Animated by this logic, these new state

declarations were an eclectic mix of enumerated rights and vague, sweeping suggestions, which

read like instructive guidelines rather than definitive compilations. They read this way because

they embodied a much different kind of imagination, one captured by Benjamin Rush’s

contention that a “Bill of Rights should contain the great principles of natural and civil liberty”

while a “Constitution is” simply “the executive part of the Bill of Rights.” In other words,

declarations of rights were less designed to constrain a constitutional grant of power than to

outline the purposes that such a grant was meant to fulfill. In this regard, such declarations were

not written to make fundamental rights or governing principles, but only to codify what already

existed and to gesture towards a larger repository outside of government. Accordingly, they

35
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.

13
betrayed minimal concern for what might have been left out and read more like instructive

guidelines rather than definitive compilations. 36

Judicial behavior during this period reveals a similar pattern. Prior to 1787, American

state judges tended to interpret constitutions according to their spirit, structure, and purpose.

Rarely did they consider a constitution’s text constitutive of its meaning or language its defining

feature.37 Few cases exhibited how much judges clung to the British constitutional perspective as

Commonwealth v. Caton that came before the Virginia Court of Appeals in 1782.38 The defense

argued that Virginia’s Treason Statute violated its constitution. 39 But Edmund Randolph, state

attorney general, countered that the two texts were perfectly reconcilable, as long as interpreters

realized that a constitution was merely a general statement; one that should not be “subjected to

the petty tyranny of grammatical rule.” 40 Significantly, Chief Justice Edmund Pendleton

concurred with Randolph’s reasoning, explaining that the constitutional question “should be

decided according to the spirit, and not by the words of the constitution.”41

Then there was Americans’ remarkably under-examined first national constitution. Prior

to 1787, the vast majority of attention was paid to the state constitutions, meaning the substance

and limits of the Articles of Confederation was deeply underdetermined. Even though, from the

perspective of the Federal Constitution that followed, the Articles appear to have embodied a

distinct conception of federalism, defined by a heavily circumscribed national government, it did

36
For more, see Rakove, Original Meanings, 306-308; Rakove “Thinking Like a Constitution,” Journal of the Early
Republic 24 (Spring 2004), 1-26; and Lutz, Popular Consent and Popular Control, 61-66.
37
William Michael Treanor, “Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of
Amar’s Bill of Rights,” Michigan Law Review 106 (Dec. 2007), 487-543; also see William Michael Treanor,
“Against Textualism,” Northwestern University Law Review 103 (Spring 2009), 983-1006.
38
The case has attracted considerable attention for perhaps offering one of the early instances of the practice of
judicial review in the United States, see William Michael Treanor, “The Case of the Prisoners and the Origins of
Judicial Review,” University of Pennsylvania Law Review 143 (Dec. 1994), 491-570.
39
Commonwealth v. Caton (1782), in Reports of Cases, IV: 7, emphasis mine.
40
Edmund Randolph, Notes of Virginia laws, Ms. Notes of Argument in Commonwealth v. Lamb &c., Library of
Congress, James Madison Papers, 91: 104, 3, available at: http://hdl.loc.gov/loc.mss/mjm.24_ 1261_1269.
41
Edmund Pendleton, Commonwealth v. Caton (1782), in Reports of Cases, IV: 19-20.

14
not seem so obvious to congressmen or constituents during the years of its operation. Congress’

ineffectiveness meant most outside the body simply ignored it. Those who suffered within,

meanwhile, tended to lament, not the textual limits that had been fixed on its power, so much as

the states’ refusal to honor its obligations. In their struggle to manage the war and post-war

difficulties, they devoted less attention to the meaning or limits of the Articles than they did to

the practical necessities facing them. Hence, when Robert Morris, superintendent of finance for

the United States, unveiled a series of financial reforms to help manage the war effort—one of

which called for Congress to charter a bank—while some like Madison privately articulated

scruples about Congress’ authority to do so, most of the other delegates assumed that, either by

implicit “constitutional power” or from “absolute necessity,” Congress enjoyed that power. The

apparent distinction between these two kinds of justification might seem massive, but the self-

consciousness would have to wait. As hesitant as congressmen were to sort out the exact

relationship between the confederacy and the states, they seemed even less interested in sorting

out the character of the constitutional boundaries dividing them. 42

*****

Still others outright denigrated constitutional language, none as intensely as James

Madison. Through stints in the Confederation Congress and then the Virginia House of

Delegates he had he had witnessed first-hand the impotence of the system set up under the

Articles of Confederation and the perils of local lawmaking within it. As it became clear that

piecemeal reform was unworkable, he began diagnosing the fundamental problems imperiling

the union. In the early months of 1787, in preparation for the upcoming general convention in

42
Virginia Delegates to Governor Benjamin Harrison, January 8, 1782, PJM, 4: 19. On the Articles, see Jack N.
Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (New York:
Alfred A. Knopf, 1979), ch. 8; David C. Hendrickson, Peace Pact: The Lost World of the American Founding
(Lawrence: University Press of Kansas, 2003), ch. 20; Michael J. Klarman, The Framers’ Coup: The Making of the
United States Constitution (New York: Oxford University Press, 2016), ch. 1.

15
Philadelphia, he brought together his insights—in his famous memorandum, “Vices of the

Political System of the United States,” and private letters to his Virginia confidantes—Thomas

Jefferson, Edmund Randolph, and George Washington.

The problem was not simply that the Articles of Confederation gave the national

government too few powers on paper, but that the “federal system” lacked “the great vital

principles of a Political Cons[ti]tution.” On the one hand the states were guilty of a catalogue of

transgressions—refusing to comply with national treaties and passing unjust legislation that

harmed their citizens. On the other hand, the national government lacked the practical capacity to

do anything about these transgressions, to functionally hold the system together. While Congress

could have used more powers, the deeper issue, as Madison explained, was that “[a] sanction is

essential to the idea of law, as coercion is to that of Government,” yet the national government

was “destitute of both.” As “acts of Cong[ress]…depend[ed] for their execution on the will of the

state legislatures,” Congress’ power was only “nominally authoritative” and, in fact,

“recommendatory only.” Congress’ inability to act on its power was not an issue of legal basis (it

enjoyed the power) but one of practical legitimacy (the states simply did not allow it and

Congress lacked the resources to coerce them). The core problem was that nominal authority—

that is textual authority—was no authority at all. Something more was needed to form a “vital”

“Political Cons[ti]tution.” 43

On this point, how Madison described and analyzed state transgressions was especially

revealing. Here Madison began developing his famous critique of republican majoritarianism and

the problem of faction, built on the insight that, in a smaller republic (like the individual

American states), nothing could protect minority rights from the tyranny of majorities. But, in so

43
Madison, “Vices of the Political System of the United States,” Papers of James Madison, IX: 348, 351, 352;
“Proposed Amendment of the Articles of Confederation,” Ibid., III: 17.

16
doing, he was also extending his indictment of textual authority. The national government

required practical coercive power, not only to enforce its own authority, but also, in order to

preserve the constitutional system itself, to curb unjust state laws. Transgression was thus framed

every bit as much in terms of a nebulous brand of republican justice as it was formal

constitutional authority. And Madison blurred these standards precisely because constitutional

maintenance required it. “The great desideratum in Government,” as he put it, “is such a

modification of the Sovereignty as will…controul one part of the Society from invading the

rights of another.” Constitutionalism was not about vested power, but effective control. It was a

matter of outfitting a political system that could hold itself together. 44

Madison’s decidedly structural conception of constitutionalism was reinforced by his

favored reforms. Curing the confederacy of its ills required several fundamental changes. But it

was really the one crucial proposal in particular that so strikingly revealed Madison’s indictment

of constitutional language. He insisted that the new government needed the requisite powers to

reign in the states, most importantly of all a negative on state legislation “in all cases

whatsoever.” No power was more crucial since, as he explained to Randolph (and directly

building from the “Vices”), “[w]ithout such a defensive power, every positive power that can be

given on paper will be unavailing.” No matter how “ample the federal powers may be made, or

however Clearly their boundaries may be delineated, on paper,” he told Jefferson, minus a

federal negative, “they will be easily and continually baffled.” Constitutional language, no matter

how strong or clear, was woefully inadequate. Reducing constitutionalism to the mode through

which it was written misunderstood the tasks inherent to such a project.45

*****

44
Madison, “Vices of the Political System of the United States,” Ibid., IX: 353, 354, 357.
45
Madison to Jefferson, March 19, 1787, Ibid., IX: 318; Madison to Randolph, April 8, 1787, Ibid., IX: 369, 370;
Madison to Washington, April 16, 1787, Ibid., IX: 383.

17
 Madison carried this distrust to the Constitutional Convention. While few shared the

same degree of self-consciousness, most betrayed similar habits of mind, imagining constitutions

fundamentally as systems—as coordinate parts that needed to be brought to equilibrium—rather

than as discreet texts that parceled and constrained power. Some drew on scientific metaphor.

John Dickinson, Delaware delegate who had been such a celebrated voice of American resistance

during the imperial crisis, “compared the proposed National System to the Solar System, in

which the States were the planets, and ought to be left to move freely in their proper orbits.” The

“national council” would be “like the sun,” and thus “illuminate the whole—the planets

revolving round it in perfect order.” Constituted as such, “the Planets” would be “repelled yet

attracted,” with the “whole moving regularly and harmoniously.” Madison picked up on this

theme to defend his favored congressional negative against state laws, calling it “the great

pervading principle that must controul the centrifugal tendency of the States” without which they

“will continually fly out of their proper orbits and destroy the order & harmony of the political

system.” While few others invoked astronomy, most did reduce the task before them to

constructing a “system” (by far the most common noun used to describe both the existent and

proposed constitutions) that would, as Wilson put it, “preserve harmony,” or, as Hamilton put it,

“maintain…equilibrium.” George Read of Delaware was opposed to “patching up the old federal

System” as “[i]t would be like putting new cloth on an old garment”; Gouverneur Morris

pondered which “vice[s]” in the “system” would be “curable” and which would not; while

Edmund Randolph described the contents he was preparing as “the constitution and

fundamentals of government.” So while key developments at the Federal Convention would at

times challenge these instincts, for the most part the discussions in Philadelphia showed a

18
striking unwillingness on the part of the delegates to render the Constitution they were

constructing in textual terms.46

To an astonishing degree, the delegates eschewed searching debate over the question of

enumerated powers or the idea of implied powers—especially in the form of the “necessary and

proper” clause, which was adopted with no contest and virtually no debate. While no doubt some

objected to Article VI of the Virginia Plan (the initial, working proposal for a constitution)—

which stipulated that, “the National Legislature ought to be impowered to enjoyed the

Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases

to which the separate States are incompetent, or in which the harmony of the United States may

be interrupted”—most dismissed such concerns out of hand, refusing to even concede the

premise. James Wilson “observed that it would be impossible to enumerate the powers which the

federal Legislature ought to have.” While Alexander Hamilton, decrying the inadequacies of the

Articles, exclaimed, “[h]ow unwise and inadequate their powers!...this must ever be the case

when you attempt to define powers.” Not simply lamenting the national government’s powers,

Hamilton, like Wilson, was denouncing the feasibility of reducing authority to words. 47

Some even more openly disparaged this idea. Madison made this point with clarity and

force during the mature stages of the convention. “If a Constitutional discrimination of the

departments on paper were a sufficient security to each agst. Encroachments of the others,” he

contended, “all further provisions would indeed be superfluous.” If potent, such paper

46
John Dickinson, June 7, 1787, The Records of the Federal Convention of 1787, ed. Max Farrand, 4 vols. (New
Haven: Yale University Press, 1911), I: 153, 157 (Yates’ Notes), 159 (King’s Notes); Madison, June 8, 1787, Ibid.,
1: 165; James Wilson, June 4, 1787, Ibid., I: 100; Hamilton, June 22, 1787, Ibid., I: 376; George Read, June 6, 1787,
Ibid., I: 136-137; Gouverneur Morris, July 24, 1787, Ibid., II: 105; Committee of Detail [Edmund Randolph], Ibid.,
II: 138. One must be careful as Madison often translated speeches into his own favored political vocabulary, see
Bilder, Madison’s Hand: Revising the Constitutional Convention (Cambridge: Harvard University Press, 2015), 38,
192-198. But since enough of these references are found in other delegates’ notes, this observation is justified.
47
Virginia Plan, May 29, 1787, Ibid., I: 20; Wilson, May 31, 1787, Ibid., I: 60 (Pierce’s Notes); Hamilton, June 18,
1787, Ibid., I: 298. Also see Klarman, Framers’ Coup, 144-147. The story is more complicated than this and a much
more extensive and nuanced discussion will appear in the book.

19
discriminations could solve most constitutional difficulties. “But experience,” he continued, “had

taught us a distrust of that security; and that it is necessary to introduce such a balance of powers

and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves

with laying down the Theory in the Constitution that each department ought to be separate &

distinct, it was proposed to add a defensive power to each which should maintain the Theory in

practice.”48 It was deeply misguided to assume that a constitution could ever be reduced to its

language, that its constituent powers could be established via “paper discriminations.” Life under

the Articles had confirmed as much. John Francis Mercer from Maryland shared these

presuppositions. “It is a great mistake,” he urged, “to suppose that the paper we are to propose

will govern the U. States?” Instead, he contended, “[i]t is The men whom it will bring into the

Governt. and interest in maintaining it that is to govern them. The paper will only mark out the

mode & the form—Men are the substance and must do the business.” 49 The Constitution was

not, and could never be, “the paper” the Convention was drafting. By necessity, it far

transcended such a limited frame. When the delegates conjured the Constitution in their minds,

they looked far beyond the parchment resting on their tables.

II. Beginning to Think Like a Text

This began to change during the ratification debates, as a vast American political

community vigorously contested whether to accept the proposed Federal Constitution between

the fall of 1787 and the summer of 1788. The document’s critics (known as Anti-Federalists)

first drew attention to the phenomenon of constitutional language; it was one of several areas

they highlighted in their wide-ranging critiques. But it was only after the document’s champions

48
Madison, July 21, 1787, Ibid., II: 77.
49
John Francis Mercer, August 14, 1787, Ibid., II: 289.

20
(the Federalists)—feeling a need to answer these incisive charges—responded in kind, that the

topic assumed a new significance. And whereas engagement with constitutional language had

been relatively limited prior to 1787, by the end of 1788 it had become an urgent concern. 50

Anti-Federalists highlighted the distinctively linguistic features of constitutionalism to

combat one of the most common Federalist justifications for the new Constitution: that it was a

necessarily imperfect and incomplete document. Necessary or not, moreover, Federalists claimed

this characteristic to be one of its cardinal virtues. Easily changeable, the Constitution would

grow with experience. By both necessity and design, it was imperfect.

The Constitution was flawed, Federalists conceded, but nothing else could have been

expected. “The new constitution is not pretended to be a work of perfection—such is not to be

expected from imperfect beings,” declared Archibald Maclaine. 51 Because the Constitution was

imperfect, it was also unfinished. Why, asked a Pennsylvanian, would we expect “this

[Constitution] to come at once into the world, like Minerva out of the head of Jupiter, in every

respect finished and perfect?”52 Moreover, this posed no issue since the Constitution came with a

built-in amendment feature (found in Article V). “[T]he seeds of reformation are sown in the

work itself,” one Federalist applauded, “there is express provision made for amendments, when

50
The literature on the ratification debates is voluminous. The best overviews of all of ratification are Pauline Maier,
Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010); Klarman,
Framers’ Coup, chs. 5-6. On the Federalist-Anti-Federalist debate are Bernard Bailyn, “The Ideological Fulfillment
of the American Revolution: A Commentary on the Constitution,” in Faces of Revolution: Personalities and Themes
in the Struggle for Independence (New York: Alfred A. Knopf, 1990), 225-278; Rakove, Original Meanings, ch. 6;
Jürgen Heideking, The Constitution Before the Judgment Seat: The Prehistory and Ratification of the Constitution,
1787-1791, eds. John P. Kaminski and Richard Leffler (Charlottesville: University of Virginia Press, 2012), ch. 3.
Other portrayals, though more focused in character, are still immensely valuable, see Wood, Creation of the
American Republic, 483-564; Max D. Edling, A Revolution in Favor of Government: Origins of the U.S.
Constitution and the Making of the American State (New York: Oxford University Press, 2003). On Anti-Federalism
specifically, see Saul Cornell, Other Founders, esp. chs. 1-4.
51
Publicola [Archibald Maclaine], “An Address to the Freemen of North Carolina,” State Gazette of North
Carolina, March 20, 1788, The Documentary History of the Ratification of the Constitution, eds. John Kaminski,
Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, and Margaret A. Hogan (Madison: State Historical
Society of Wisconsin, 1976-), 26 volumes (hereafter DHRC), XVI: 438.
52
Philadelphia Freeman’s Journal, October 10, 1787, DHRC, XIII: 361.

21
its defects and imperfections shall be discovered in its operation.” 53 In sum, the proposed

Constitution was nothing more than a “first draught,” nothing “but a dead Letter.”54

*****

Where Federalists emphasized the necessity and virtue of constitutional imperfection,

Anti-Federalists passionately decried it. As one put it, “In framing a government, we should

consider a century to come as but a day, and leave the least possible for posterity to mend.” 55 An

unfinished constitution, defined by open-ended vagueness, would be an instrument of tyranny—

one prone to interpretive manipulation. Accordingly, where Federalists celebrated the

Constitution’s provisional character, Anti-Federalists condemned its ambiguous and permissive

language. In pitching the argument this way, Anti-Federalists tightly linked concerns about the

abuse of power to the abuse of language. It was not simply that the imperfect, unfinished

Constitution was a threat to liberty, but specifically that its language (and what could be done

with it) was. As a result, perfecting and finishing the Constitution meant affording it a linguistic

precision that it currently lacked. In other words, Anti-Federalists began saying that the

Constitution’s tyrannical character was as much a function of how it was written as what it said.

Anti-Federalists bombarded the public sphere with repeated complaints about the

Constitution’s “vague,” “ambiguous,” “indefinite,” and “inexplicit” language. As Cato warned,

53
Publicola [Archibald Maclaine], “An Address to the Freemen of North Carolina,” State Gazette of North
Carolina, March 20, 1788, DHRC, XVI: 438; also see Henry Knox to George Washington, New York, October 3,
1787, DHRC, XIII: 307; James Wilson, “Speech at a Public Meeting in Philadelphia,” October 6, 1787, DHRC,
XIII: 343; A Citizen of Philadelphia [Pelatiah Webster], “The Weaknesses of Brutus Exposed,” November 8, 1787,
DHRC, XIV: 70; George Washington to Bushrod Washington, Mount Vernon, November 10, 1787, DHRC, XIV:
85; A Landholder V [Oliver Ellsworth], Connecticut Courant, December 3, 1787, DHRC, XIV: 338; George
Washington to John Armstrong, Sr., Mount Vernon, April 25, 1788, DHRC, XVII: 215; Henry Lee III, Virginia
Ratifying Convention, June 9, 1788, DHRC, IX: 1081; John Marshall, Virginia Ratifying Convention, June 10,
1788, DHRC, IX: 1125; James Innes, Virginia Ratifying Convention, June 25, 1788, DHRC, X: 1524.
54
John Armstrong, Sr. to George Washington, Carlisle, Pennsylvania, February 20, 1788, DHRC, XVI: 150;
Gouverneur Morris to James LaCaze, Williamsburg, Virginia, February 21, 1788, DHRC, XVI: 171; also see
Publius [James Madison], “The Federalist 22,” New York Packet, December 14, 1787, DHRC, XIV: 442.
55
“Strictures on the Proposed Constitution,” Philadelphia Freeman's Journal, September 26, 1787, DHRC, XIII:
244; also see An Old Whig I, Philadelphia Independent Gazetteer, October 12, 1787, DHRC, XIII: 377; Brutus II,
New York Journal, November 1, 1787, DHRC, XIII: 525.

22
in “adopt[ing] a system so vague…you are about to precipitate yourselves into a sea of

uncertainty….”56 Of course, it was not simply the vague nature of the Constitution’s language

that was so alarming, it was what this characteristic would fuel in practice. Through the clever

manipulation of the document’s words, those in authority would claim an astonishing sweep of

power. As John Williams warned, “[they] may heap refinement upon refinement and subtilty

upon subtilty, until they construe away every republican principle.” 57

Anti-Federalists especially obsessed over the Constitution’s most troubling clauses. They

skewered the preamble, the General Welfare Clause that prefaced congressional power, the

taxation clause, the clause vesting judicial power, and many others that they thought would

enable those in power to manipulate words to destructive effect. As concerning as these clauses

might have been, though, they were overshadowed by what punctuated Article I, Section Eight.

After all of Congress’ powers had been enumerated, the proposed Constitution read that

Congress also enjoyed the right to make all laws “which shall be necessary and proper” for

executing all of the “foregoing Powers.” No clause seemed more threatening. “The clause which

vests the power to pass all laws which are proper and necessary…leaves the legislature at liberty,

to do every thing,” remarked Brutus. It encourages users to appeal to “the spirit, intent and

design of the clause,” rather than simply its “words.”58 This clause was so threatening because it

was language that nullified language; words that thrust the reader beyond the explicit into the

indefinite realm of spirit and design.

With a vengeance, Anti-Federalists also latched onto Article III, which specified the

powers of the judiciary. Many Americans viewed judges with suspicion at the time of the

56
Cato V, New York Journal, November 22, 1787, DHRC, XIV: 183.
57
John Williams, New York Ratifying Convention, June 27, 1788, DHRC, XXII: 1936; also see An Old Whig II,
Philadelphia Independent Gazetteer, October 17, 1787, DHRC, XIII: 400-401; Patrick Henry, Virginia Ratifying
Convention, June 14, 1788, DHRC, X: 1286.
58
Brutus XI, New York Journal, January 31, 1788, DHRC, XV: 515.

23
Constitution’s drafting. Prior to independence, judges had been servants of the crown and they

still carried the burden of that legacy. 59 The fact that so many future Anti-Federalists, suffering

through the economic pains of the previous decade, had found themselves, against their wishes,

in debtors’ court, only heightened suspicion of judicial officers. 60 Accordingly, Anti-

Federalists—be they elites and middling professionals wary of centralized power or laborers and

farmers who had acquired a distaste for judges of all kinds—studied Article III with care,

worried about what kind of powers and discretion federal judges might enjoy. Perhaps what

bothered them most, though, was not the explicit powers afforded the federal judiciary, but

instead the ways in which Article III’s language seemed to cloak those prospective powers in

mystery. “The Judicial Power extends to all Cases of Law & Equity arising under the

Constitution…The Extent of the Judicial Power is therefore, as indefinite & unlimited as Words

can make it” complained Samuel Osgood.61 William Grayson, added, “The jurisdiction of all

cases arising under the Constitution, and the laws of the Union, is of stupendous magnitude. It is

impossible for human nature to trace its extent. It is so vaguely and indefinitely expressed, that

its latitude cannot be ascertained.” 62 Concerns like these led Melancton Smith to conclude, “The

judicial powers in this Constitution, are given in too general and indefinite terms; are so various

and extensive, that they may easily be made by legal fiction to extend too far.” 63 The reasoning

59
For more on the place of judges in Revolutionary American culture, see Saul Cornell, “The People’s Constitution
vs. the Lawyer’s Constitution,” Yale Journal of Law and the Humanities 23 (Summer 2011), 295-337; Gordon S.
Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009),
ch. 11; Jack N. Rakove, “The Origins of Judicial Review: A Plea for New Contexts,” Stanford Law Review 49 (May
1997), 1060-1064.
60
See Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007), 43-
45, 100-107; Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending of the
American Revolution (New York: Oxford University Press, 2007), ch. 4; Cornell, “The People’s Constitution vs. the
Lawyer’s Constitution,” 306-307.
61
Samuel Osgood to Samuel Adams, New York, January 5, 1788, DHRC, XV: 264-265.
62
William Grayson, Virginia Ratifying Convention, June 21, 1788, DHRC, X: 1446-1447.
63
Melancton Smith, New York Ratifying Convention, July 17, 1788, DHRC, XXIII: 2214-2215.

24
was striking. “General and indefinite terms” fueled “legal fiction,” which was another way of

saying that pliable constitutional language produced invented powers.

Because judicial authority was conveyed through such imprecise language, it would

enjoy wide interpretive latitude. No Anti-Federalist author more incisively or sophisticatedly

probed this dimension than Brutus, the New York essayist. Through a series of striking analyses,

he explained how the courts would extend their power through creative, constructive

interpretations of the Constitution’s words (first those applying to the judiciary and then, in time,

the rest of the document). As he characterized it, “the plan is so modelled, as to authorise the

courts, not only to carry into execution the powers expressly given, but where these are wanting

or ambiguously expressed, to supply what is wanting by their own decisions.” Not only would

the judiciary have “a certain degree of latitude to explanation,” he explained, to push beyond the

“generally received acceptation of the words in which it is expressed. But, even worse, as federal

judges “are not only to decide questions arising upon the meaning of the constitution in law, but

also in equity,” they would be “empowered, to explain the constitution according to the

reasoning spirit of it, without being confined to the words or letter.”64 All of which meant, most

troublingly of all, that “this court will be authorised to decide upon the meaning of the

constitution, and that, not only according to the natural and ob[vious] meaning of the words, but

also according to the spirit and intention of it.”65 Because the judiciary was not properly pinned

down by the text, it could use that license to destabilize all of the text. After awhile, the

Constitution would possess nothing save judge-made meaning.

The Constitution, thus, was troublingly vulnerable to misreadings, distortions, and

sophistic interpretations of all sorts, leaving it susceptible, as Anti-Federalists derisively claimed,

64
Brutus XI, New York Journal, January 31, 1788, DHRC, XV: 512, 513-514.
65
Brutus XV, New York Journal, March 20, 1788, DHRC, XVI: 433.

25
to lawyers’ manipulation.66 “The rights of the people,” as one Richmond writer put it, “should

never stand in need of the comments or explanations of lawyers” who were “too apt, we know, to

entangle the plainest rights in their net of sophistry....”67 Indeed, Samuel Osgood was convinced

that the Constitution writ large “is a Plan, that the common People can never understand—That if

adopted—the Scribes & Pharisees only will be able to interpret, & give it a Meaning.” 68 In a

celebrated speech in the Massachusetts ratifying convention, Amos Singletary articulated these

concerns with unmatched imagery:

These lawyers, and men of learning…that talk so finely and gloss over matters so
smoothly, to make us poor illiterate people swallow down the pill…expect to be the
managers of the Constitution and get all the power…onto their hands, and then they will
swallow up all us little folks, like the great Leviathan, Mr. President, yes, just as the
whale swallowed up Jonah. 69

Likening lawyers’ cunning to the whale in the Biblical story of Jonah connected Anti-

Federalist’s constitutional complaints to the Protestant plain style that otherwise pervaded

religious interpretation. Much as many Protestants denounced the hermeneutical authority of

church clerics over scripture, so too did numerous Anti-Federalists preempt lawyers’ claim to

expert mediation over matters of constitutional law.70

66
See generally, Cornell, “The People’s Constitution vs. the Lawyer’s Constitution.” Anti-lawyer sentiment was
strong in Revolutionary America, see e.g. Benjamin Austin’s contemporary pamphlet, Honestus, Observations on
the Pernicious Practice of the Law (Boston: 1786); also see Richard E. Ellis, The Jeffersonian Crisis: Courts and
Politics in the Young Republic (New York: Oxford University Press, 1971), 111-116, 253-256; Nathan O. Hatch,
The Democratization of American Christianity (New Have: Yale University Press, 1989), 26-28; Alan Taylor,
William Cooper’s Town: Power and Persuasion on the Frontier of the Early American Republic (New York: Alfred
A. Knopf, 1995), 244-246; and Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American
Independence (Cambridge: Harvard University Press, 2002), 32. Also pervasive was concern about lawyers’
penchant for rhetorical manipulation, see Christopher Grasso, A Speaking Aristocracy: Transforming Public
Discourse in Eighteenth-Century Connecticut (Chapel Hill: University of North Carolina Press, 1999), 431-449.
67
A True Friend, Richmond, December 6, 1787, DHRC, XIV: 377; also see Samuel Osgood to Samuel Adams, New
York, January 5, 1788, DHRC, XV: 265.
68
Samuel Osgood to Samuel Adams, New York, January 5, 1788, DHRC, XV: 264; also see Marcus, New York
Daily Advertiser, October 15, 1787, DHRC, XIII: 383; Centinel XV, Philadelphia Independent Gazetteer, February
22, 1788, DHRC, XVI: 189-190.
69
Amos Singletary, Massachusetts Ratifying Convention, January 25, 1788, DHRC, VI: 1346-1347.
70
Cornell, “The People’s Constitution vs. the Lawyer’s Constitution,” 305. For the best discussion of Anti-
Federalists’ commitment to the plain style of reading texts, see Cornell, Other Founders, 58-59. For more on the
place of Protestant hermeneutics more generally in founding-era constitutional interpretation, see H. Jefferson

26
 These various points underscored something more fundamental: that in order to safeguard

liberty, the Constitution could not be a legal text.71 Instead, it needed to be a people’s text. To

bring this full circle, in order to be a people’s text, the Constitution needed to be written in clear

and precise language. Patrick Henry connected the dots: “A Constitution,” he contended, “ought

to be like a beacon, held up to the public eye so as to be understood by every man.” Thus its

interpretation ought to privilege “the usual meaning of the language of the people.”72

All of these critiques gestured towards a new kind of textual consciousness. As John De

Witt wrote, “Language is so easy of explanation, and so difficult is it by words to convey exact

ideas, that the party to be governed cannot be too explicit. The line cannot be drawn with too

much precision and accuracy.” 73 Anti-Federalists insisted that language needed to parcel and

barricade power in its own right; words, as much as structural arrangements, needed to police

tyranny and corruption. All of which meant that constitutional words needed to be written with

unmatched perspicuity. 74

*****

Federalists did their best to ignore these arguments. But in the face of such focused

critiques, they ultimately answered in kind. Importantly, though, their responses took two subtly

different forms, suggesting how Federalist argument was being pulled in opposite directions in

the face of this challenge. Federalists not only denied Anti-Federalists’ premise about

constitutional language, they also, simultaneously, ceded that premise while, instead, rejecting

Powell, “The Original Understanding of Original Intent,” Harvard Law Review 98 (Mar. 1985), 889-894. For more
on the long-standing evangelical opposition to lawyers, which likened the dangerous presumptions of legal
rationality to those of religious rationality, see Ellis, Jeffersonian Crisis, 253-256.
71
Cornell, “The People’s Constitution vs. the Lawyer’s Constitution.”
72
Patrick Henry, Virginia Ratifying Convention, June 23 and 20, 1788, DHRC, X: 1466, 1422-1423.
73
John De Witt II, American Herald, October 29, 1787, DHRC, IV: 158.
74
This obsession with linguistic precision was especially strong among plebeian Anti-Federalists, see Saul Cornell,
“Constitutional Meaning and Semantic Instability: Federalists and Anti-Federalists on the Nature of Constitutional
Language,” American Journal of Legal History 56 (March 2016), 21-28, 22, 25-27; on plebeian Anti-Federalism
generally, see Cornell, Other Founders, ch. 3.

27
their conclusion. Anti-Federalists warned that officeholders would lay claim to an astonishing

sweep of power by manipulating the Constitution’s language. The issue was not that those in

power would ignore the Constitution, but that the Constitution itself would facilitate their

tyranny. Accordingly, Anti-Federalists insisted that the Constitution needed to be purged of its

destructive indeterminacies. Perhaps those in power might still ignore these meanings, but they

did so at their own peril since they would be acting in express violation of the Constitution’s

meaning. So their premise was that language could police those in power if properly constructed.

On the one hand, Federalists often rejected this claim, doubling down on their commitment to an

imperfect, unfinished Constitution. This time, however, they disparaged language itself in the

process—whether it be language’s capacity to police those in power, close or complete the

Constitution, or communicate determinate meaning. Properly understanding language meant

appreciating that a viable Constitution could never be made or defined by it. But, on the other

hand, Federalists also at times accepted Anti-Federalists’ premise about constitutional language,

instead opting to denounce their conclusion by showing how a proper reading of the Constitution

in fact yielded the kind of decisive, determinate meaning that Anti-Federalists deemed

impossible. In making this argument, though, Federalists were suggesting that constitutional

language could do far more than their other arguments implied. In one breath they critiqued the

Constitution-as-text while in another affirming it. And by focusing on language to make both

points they helped elevate the urgency of constitutional language.

Much of the time, Federalists mocked the idea that language might regulate politics.

Finely-drawn linguistic barriers were, as they put it, mere “parchment barriers.”75 As Noah

Webster proclaimed, “[A] perpetual constitution on parchment…was a useless form of words.

75
Publius [James Madison], “The Federalist 48,” New York Packet, February 1, 1788, DHRC, XVI: 4 (emphasis
mine); also see Publius [Alexander Hamilton], “The Federalist 84,” New York, May 28, 1788, DHRC, XVIII: 129-
132.

28
Liberty is never secured by such paper declarations…nor lost for want of them.” 76 Constitutions

endured due to the structural equilibrium they achieved, not because of the textual impediments

they threw up. A government could not be reduced to words. It was an entity in motion, a set of

practices more than a bundle of stipulations. As Gouverneur Morris put it most bluntly: “No

Constitution is the same on Paper and in Life.” 77

Even if language could not police or imprint power, just as problematically, Federalists

contended, it also could not produce a complete constitution. It would not allow humans to

enumerate a finished and closed system. Nor could its generalities adequately account for all

possible contingencies. Federalists had stressed the impossibility of a finished constitution. Now

they stressed that this impossibility was, as much as anything else, a function of the linguistic

medium through which human constitutional design was conducted. It was the inherent character

of language that left constitutions invariably open-ended since language perpetually undermined

the act of fixing constitutions once and for all. As Madison wrote, in one of his many

contributions to the Federalist papers, “Were it possible to delineate on paper, all those particular

cases and circumstances in which [power was exercised]…I imagine no Gentleman would object

to it. But this is not within the limits of human capacity.” 78

Federalists also highlighted language’s own imperfections. Its purpose was to convey

meaning, yet it was as likely to cloud its object as to cast it in sharp relief. As Oliver Ellsworth

asserted, “The charge of being ambiguous and indefinite may be brought against every human

76
Giles Hickory III [Noah Webster], “Government,” American Magazine (New York), February 1788, 141
77
Gouverneur Morris to George Washington, Philadelphia, October 30, 1787, DHRC, XIII: 514; also see John Jay,
New York Ratifying Convention, July 24, 1788, DHRC, XXIII: 2289.
78
James Madison, Virginia Ratifying Convention, June 16, 1788, DHRC, X: 1323.

29
composition, and necessarily arises from the imperfection of language.” 79 Nobody captured the

point as penetratingly as Madison did in Federalist 37,

the medium through which the conceptions of men are conveyed to each other, adds a
fresh embarrassment. The use of words is to express ideas. Perspicuity therefore requires
not only that the ideas should be distinctly formed, but that they should be expressed by
words distinctly and exclusively appropriated to them. But no language is so copious as
to supply words and phrases for every complex idea, or so correct as not to include many
equivocally denoting different ideas….When the Almighty himself condescends to
address mankind in their own language, his meaning, luminous as it must be, is rendered
dim and doubtful, by the cloudy medium through which it is communicated. 80

Effectively paraphrasing Locke, Madison highlighted how language, in never being quite supple

enough to capture the full depth of complex ideas, tended to hold humans apart both from the

objects they were trying to understand and those with whom they were speaking. 81 Given these

imperfections, it was hardly surprising that the Constitution featured its share of ambiguities and

indeterminacies.

Due to this reality, only the experience of subsequently using the document could supply

what it was, by necessity, lacking. Thus Madison concluded, “All new laws, though penned with

the greatest technical skill, and passed on the fullest and most mature deliberation, are considered

as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a

series of particular discussions and adjudications.” 82 Discussion was perhaps the pivotal word.

The ratification debates already had revealed the indeterminacy, ambiguity, and obscurity of the

constitutional text—characteristics its drafters had not intended to include and likely had failed

to notice. There was hope, however, in the practices that had revealed these imperfections; the

79
A Landholder V [Oliver Ellsworth], Connecticut Courant, December 3, 1787, DHRC, XIV: 335.
80
Publius [James Madison], “The Federalist 37,” New York Daily Advertiser, January 11, 1788, DHRC, XV: 346-
347.
81
For more on Madison’s use of Locke in Federalist 37, see Jack N. Rakove, “Joe the Ploughman Reads the
Constitution, or, The Poverty of Public Meaning Originalism,” San Diego Law Review 48 (May 2011), 575-600,
593-595.
82
Publius [James Madison], “The Federalist 37,” New York Daily Advertiser, January 11, 1788, DHRC, XV: 345-
346; also see Publius [Alexander Hamilton], “The Federalist 82,” New York, May 28, 1788, DHRC, XVIII: 111.

30
debates that began during ratification would be resumed in the first Congress (and elsewhere)

and would help clarify an otherwise indeterminate text. For Madison, then, Anti-Federalists’

observation was sound, if not the moral they gleaned from it.83

As noted, though, Federalists were moving in contradictory directions at once. They

betrayed the assumption that Anti-Federalists’ premise was, in fact, sound, when they otherwise

insisted that the Constitution was suitably explicit. As John Dickinson trumpeted, “the proposed

system [is] established, in the most clear, strong, positive, unequivocal expressions, of

which…language is capable.” Nothing has ever “contained clauses more decisive and

emphatic.”84 Zachariah Johnson added, “When we advert to the plain and obvious meaning of

the words, without twisting and torturing their natural signification, we must be satisfied that”

most Anti-Federalist protests were groundless. 85 Thus, even though Federalists pointed to the

numerous ways in which the Constitution was indeterminate, provisional, and unfinished, by

defending its clarity they concurrently emphasized its determinacy. This paradoxical tendency

was most evident, not when they generically insisted upon the Constitution’s lucidity, but when

they explained, in concrete terms, how Anti-Federalists were guilty of misreading it.

Federalists challenged every Anti-Federalist reading of individual clauses—from the

“general welfare” clause to the taxation clause to the judicial powers clause—concluding, as

Edmund Randolph evocatively put it, that Anti-Federalists were guilty of “treason against

common language.”86 Since Anti-Federalists had singled out the “necessary and proper” clause

83
Here Madison also broke with Locke’s more pessimistic conclusions about language, see Dawson, Locke,
Language and Early Modern Philosophy, chs. 7-10.
84
Fabius II [John Dickinson], Pennsylvania Mercury, April 15, 1788, DHRC, XVII: 126.
85
Zachariah Johnson, Virginia Ratifying Convention, June 25, 1788, DHRC, X: 1531; also see “Social Compact,”
New Haven Gazette, October 4, 1787, DHRC, XIII: 311-313.
86
Edmund Randolph, Virginia Ratifying Convention, June 17, 1788, DHRC, X: 1350. On Federalists critiques of
Anti-Federalists’ textual readings, see Publius [James Madison], “The Federalist 41,” New York Independent
Journal, January 19, 1788, DHRC, XV: 424, 425; Publius, “The Federalist 81,” New York, May 28, 1788, DHRC,
XVIII: 109, 110; John Marshall, Virginia Ratifying Convention, June 20, 1788, DHRC, X: 1437.

31
as the piece of constitutional text most “replete with great dangers,” Federalists were especially

eager to defend its propriety. Perhaps nowhere, they argued, had constitutional language been

more grossly abused. “Few parts of the Constitution have been assailed with more intemperance

than this,” charged Madison, “yet on a fair investigation of it, no part can appear more

compleatly invulnerable.” Indeed, “Without the substance of this power, the whole Constitution

would be a dead letter.” He reasoned that the Convention might have done any one of four

things: copied the language from the Articles of Confederation prohibiting “the exercise of any

power not expressly delegated”; enumerated every potential power “comprehended under the

general terms ‘necessary and proper’”; compiled a negative enumeration; or remained silent,

“leaving these necessary and proper powers, to construction and inference.” The first would have

crippled the government while the second and third were impractical. The fourth, though, already

belonged to the government “by unavoidable implication.” The moral here was inescapable. “No

axiom is more clearly established in law, or in reason,” Madison declared, “than that wherever

the end is required, the means are authorised; wherever a general power to do a thing is given,

every particular power necessary for doing it, is included.” 87 Hamilton best summed up this

point, “The declaration itself, though it may be chargeable with tautology and redundancy, is at

least perfectly harmless.”88 The “necessary and proper” clause was superfluous, merely

identifying a power that the government, by definition, already had. But, as others would argue,

it made sense nonetheless to specify this power clearly to ensure that it would be respected. 89

87
Publius [James Madison], “The Federalist 44,” New York Packet, January 25, 1788, DHRC, XV: 471, 472, 473;
also see Publius [Alexander Hamilton], “The Federalist 32-33,” New York Independent Journal, January 2, 1788,
DHRC, XV: 220; Aristides, Remarks on the Proposed Plan, January 31, 1788, DHRC, XV: 531-532.
88
Publius [Alexander Hamilton], “The Federalist 32-33,” New York Independent Journal, January 2, 1788, DHRC,
XV: 221.
89
See George Nicholas, Virginia Ratifying Convention, June 10, 1788, DHRC, IX: 1135; George Nicholas, Virginia
Ratifying Convention, June 16, 1788, DHRC, X: 1327.

32
 Anti-Federalists had also argued that the federal courts would enjoy wide interpretive

latitude over the Constitution. Yet, according to Federalists, it seemed as though Anti-

Federalists, not hypothetical federal judges, were guilty of unconstrained, far-reaching

interpretation. For, as Hamilton declared, “there is not a syllable in the plan under consideration

which directly empowers the national courts to construe the laws according to the spirit of the

constitution, or which gives them any greater latitude in this respect, than may be claimed by the

courts of every state.”90 The Constitution’s opponents—Brutus especially—had simply allowed

their imaginations to get the best of them, distancing them from the very text they were claiming

to defend. For this and related reasons, it was incorrect to read the Constitution as vesting the

Supreme Court with final interpretive authority, to—as Hamilton argued—“suppose a superiority

of the judicial to the legislative power.” The right of courts to review laws, instead, “only

supposes that the power of the people is superior to both; and that where the will of the

legislature declared in its statutes, stands in opposition to that of the people declared in the

constitution, the judges ought to be governed by the latter, rather than the former. They ought to

regulate their decisions by the fundamental laws.”91 Yet again, Anti-Federalists had not exposed

crippling ambiguities; they had created them.

In claiming that Anti-Federalists had cavalierly misread the Constitution, Federalists

were beginning to concede, in their own way, that language—read the right way—could

potentially police power. This implication became even clearer when they pivoted from

denouncing Anti-Federalists’ readings to more positively articulating instead how one ought to

read the proposed constitutional text. In turn, they advanced (however hesitantly) rules of

constitutional interpretation. In so doing, they revealed two things. First, in shifting from the

90
Publius [Alexander Hamilton], “The Federalist 81,” New York, May 28, 1788, DHRC, XVIII: 103-104.
91
Publius [Alexander Hamilton], “The Federalist 78,” New York, May 28, 1788, DHRC, XVIII: 90; also see
Publius, “The Federalist 82,” New York, May 28, 1788, DHRC, XVIII: 114.

33
substantive question of constitutional meaning to the distinct methodological one of interpretive

modes, Federalists showed just how much uncertainty surrounded the Constitution-as-text at this

time. For it proved decidedly unclear which rules of interpretation ought to govern usage of the

Constitution, precisely because it remained so uncertain what the Constitution, in fact, was. All

existent interpretive rules were tethered to certain kinds of interpretive objects, meaning any

proposal about rules necessarily implied an understanding of the Constitution’s status as such an

object. Suggestions about interpretive modes, thus, only exposed the fraught character of

constitutional ontology. But, the second thing that such proposals revealed was Federalists’

willingness to at least begin thinking like a text. Even if uncertainty about the Constitution’s

status as an interpretive object reigned (and would continue to for some time), nonetheless

Federalist attempts to establish proper interpretive modes—failed though they were—legitimized

the very Anti-Federalist premise that they had otherwise devoted so much energy denouncing.

By initiating and sustaining this conversation, Federalists betrayed a willingness to join the Anti-

Federalists in imagining the Constitution in linguistic terms.

Contemplating rules of constitutional interpretation immediately provoked questions

about the Constitution’s fundamental status. What kind of an instrument was it? Was it a legal

device? If so, what kind? Might it be akin to a statute, a contract, a treaty, or perhaps something

else entirely? (Treaties were interpreted more liberally than statutes, for instance, while the

subjective intent of original parties was usually irrelevant when construing contracts.) Or was a

constitution—or maybe just this constitution—a special category of legal object? Or were Anti-

Federalists correct that the Constitution was not a legal instrument at all, but instead a “people’s

document”? Every possibility received consideration during the frenetic back-and-forth. And to

the extent there was a dominant opinion, it was simply that the Constitution was, by its character,

34
distinct, a premise that only compounded the uncertainty. For even if the Constitution was a legal

document, it seemed to be a decidedly unusual one, as its fundamental status rested (like some

state constitutions before it) on the popular approval of a sovereign people. 92

Little about the Constitution itself, then, clearly justified any particular interpretive

protocol. So where might American interpreters turn to locate suitable interpretive rules? Of

those already at their disposal, perhaps none seemed more pertinent than the interpretive canons

inherited from the British common law tradition. They seemed to offer substantial guidance and

derived from a tradition that remained foundational to American legal training (leading works by

William Blackstone, Edward Coke, and Matthew Hale were only the most conspicuous common

law texts in American libraries). 93 Blackstone’s work seemed especially helpful, since he had

done the most to codify rules of common law interpretation—both fixing the scope and meaning

of important legal doctrines and establishing protocols for interpreting legal instruments. 94

92
On rules for reading various legal devices, see Nelson, “Originalism and Interpretive Conventions,” 561-573.
Numerous have assumed that the Constitution is inherently a legal text, supporting this position with references to
eighteenth-century attitudes, see e.g. John O. McGinnis and Michael B. Rappaport, Originalism and the Good
Constitution (Cambridge: Harvard University Press, 2013), 128-132; Powell, “The Original Understanding of
Original Intent,” 894-924; Scalia and Garner, Reading Law, 403-405; McDowell, Language of Law, 248-251;
Robert G. Natelson, “The Founders’ Hermeneutic: The Real Understanding of Original Intent,” Ohio State Law
Journal 68 (2007), 1239-1305; Robert G. Natelson, The Original Constitution: What it Actually Said and Meant
(Los Angeles: Tenth Amendment Center, 2010), esp. 7-9, 25-26; John F. Manning, “Separation of Powers as
Ordinary Interpretation,” Harvard Law Review 124 (June 2011), 2025; Mark A. Graber, A New Introduction to
American Constitutionalism (New York: Oxford University Press, 2013), 24-28; William Baude and Stephen E.
Sachs, “The Law of Interpretation,” Harvard Law Review 130 (Feb. 2017), 1118-1121; Gary Lawson and Guy
Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (Lawrence: University Press of
Kansas, 2017), esp. ch. 1. Others have recognized some of the problems with this assumption. On how the
Constitution marked a new kind of fundamental law since it relied on the sovereign people’s ratification, see Charles
A. Lofgren, “The Original Understanding of Original Intent?,” Constitutional Commentary 5 (Winter 1988), 82-85;
and, for a deeper elaboration, Kramer, People Themselves, chs. 3-5. On how so many thought the Constitution was
not a legal text, see Cornell, “The People’s Constitution vs. The Lawyer’s Constitution.”
93
For the ubiquity of the common law in eighteenth-century American legal training and reasoning, see Bailyn,
Ideological Origins, 30-31; Bernadette Meyler, “Towards a Common Law Originalism,” Stanford Law Review 59
(Dec. 2006), 582-584; Bilder, “James Madison, Law Student and Demi-Lawyer,” 395-399, 404, 413-415; and Julian
S. Waterman, “Thomas Jefferson and Blackstone’s Commentaries,” Illinois Law Review 27 (1933), 630-634.
94
For his interpretive recipe, see Sir William Blackstone, Commentaries on the Laws of England, 4 books
(Philadelphia: Robert Bell, 1771), I: 59-61.

35
 But uncertainty surrounded the eighteenth-century common law. For starters, its content

was a matter of great debate in Britain itself. Blackstone’s widely-read work—which purportedly

codified common law interpretation—was avowedly polemical, more a controversial set of

suggestions for legislative action than an embodiment of well-established consensus. Writing in

a profoundly different context than his predecessors, at a time when the common law was in

decline and Parliament exhibited unprecedented control over lawmaking, Blackstone was trying

to reinvigorate a fading authority and could only find success by synthesizing common law

doctrine with Parliamentary supremacy, a requirement that introduced fresh novelties. 95

Compounding the confusion, the American common law differed from its British counterpart.

Changing needs had produced divergent legal norms. And since the common law was

accumulated custom, time only accentuated these differences. As George Mason declared, “The

common law of England is not the common law of these States.” 96 Accordingly, by the late

eighteenth century, the common law was more a fractured field rather than a unified whole,

exhibiting, as Madison explained, “neither uniformity nor stability,” and certainly not reducible

to a tidy, legible set of rules.97 This was to say nothing of the crucial background against which it

was set. As each of its doctrines was inextricably tied to the jurisprudential perspective that had

95
David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (New
York: Cambridge University Press, 1989), chs. 1-2.
96
George Mason, Virginia Ratifying Convention, June 19, 1788, DHRC, X: 1390-1391. On the divergences between
colonial and British common law, see Bilder, Transatlantic Constitution; and William E. Nelson, Americanization of
the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge: Harvard
University Press, 1975).
97
James Madison, “Madison’s Notes, August 17, 1787,” Records, II: 316; Meyler, “Towards a Common Law
Originalism,” 559-572. This portrait of the common law runs counter to the one many constitutional originalists fall
back on, see esp. Scalia, “Common-Law Courts.” It also runs counter to that found in Natelson, “The Founders’
Hermeneutic,” the entire analysis of which is predicated on the assumption that “English and American law formed
a unified system,” see 1246-1249, quote 1246, a presupposition that allows him to draw upon English and American
court cases indiscriminately to establish interpretive norms.

36
generated them—one that understood law as neither static nor permanent, but instead dynamic

and evolving—it could never be, as Edmund Randolph asserted, “immutably fixed.” 98

And, beyond all of this, there was the matter of common law rules’ very applicability to

American constitutionalism. Common law doctrines offered familiar precedent from which much

could be stabilized and understood and, indeed, many instinctively drew upon them. 99 But such

doctrines also were inextricably tied to a tradition that sanctified Parliamentary supremacy and

from which Americans had consciously—and bloodily—revolted. The inheritance was, thus,

deeply tenuous and outright rejected by many. As Benjamin Austin asked disdainfully, “why

should these States be governed by British laws? Can we suppose them applicable…? Can the

monarchical and aristocratical institutions of England, be consistent with the republican

principles of our constitution?...We may as well adopt the laws of the Medes and Persians.” 100

To those like William Findley, the answers to these questions were obvious. “England had

always the common law,” he declared, therefore “[it] will not apply to us.”101

This uncertainty about the content and applicability of common law rules of construction

gestured towards the broader issue: that it was simply unclear which rules of interpretation were

98
Edmund Randolph, Virginia Ratifying Convention, June 17, 1788, DHRC, X: 1352. Meyler, “Towards a Common
Law Originalism,” 581-592. On the historical perspective embedded in the common law, see Pocock, Ancient
Constitution and the Feudal Law, ch. 2. On how this historical perspective generated an American common-law
mindset, see Stephen A. Conrad, “The Constitutionalism of ‘the Common-law Mind,’” Law and Social Inquiry 13
(Summer 1988), 619-636; James R. Stoner, Common-Law Liberty: Rethinking American Constitutionalism
(Lawrence: University of Kansas Press, 2003); Mary Sarah Bilder, “James Madison, Law Student and Demi-
Lawyer,” Law and History Review 28 (May 2010), 389-449; and Konig, “James Madison and Common-Law
Constitutionalism.” Again, for a static portrait of the Anglophone common law, see Scalia, “Common-Law Courts.”
99
Crucial institutions like equity, admiralty, and jury trial along with several terms of art like “habeas corpus,” “bill
of attainder,” and “ex post facto law” immediately informed American constitutionalism.
100
Honestus [Benjamin Austin], Observations on the Pernicious Practice of the Law, 12; also see 37.
101
William Findley, Pennsylvania Ratifying Convention, November 30, 1787, DHRC, II: 439. On the debates
Americans had over the common law’s applicability, many of which took place in the decades after ratification, see
Meyler, “Towards a Common Law Originalism,” 572-580. On the uneasy refraction of British common-law culture
through American legal developments, see Mary Sarah Bilder, Maeva Marcus, and R. Kent Newmyer, eds.,
Blackstone in America: Selected Essays of Kathryn Preyer (New York: Cambridge University Press, 2009); and
Nelson, Americanization of the Common Law. Many legal scholars have assumed that “the Founders expected the
Constitution to be read in light of Anglo-American law” without appreciating that “Anglo-American law” failed to
pick out a stable object or that, for quote see Natelson, “The Founders’ Hermeneutic,” 1246; also see generally
Powell, “The Original Understanding of Original Intent.”

37
appropriate for the Constitution. Questions abounded. If conventional legal rules might play a

valid role in constitutional interpretation, it remained uncertain which ones and in which

contexts. But it was also entirely possible—given the Constitution’s distinct character—that

interpretation of it marked a new frontier entirely, meaning novel rules (rather than existent ones)

would be needed to construe such a special instrument. Even had Blackstone’s rules not been so

controversial and even had there not been questions about English legal norms’ applicability to

American constitutionalism, even still it would have been perfectly logical to have rejected them

anyway (as many did), on the grounds that rules for construing statutes were irrelevant to the

interpretation of a constitution uniquely predicated on popular sovereignty. Everything, it

seemed, was up for grabs. So when Federalists, in an effort to combat Anti-Federalists’

complaints about textual ambiguity, insisted that the Constitution should be interpreted according

to conventional rules of interpretation, it quickly became clear that nobody (Federalists most of

all) knew exactly what that meant. Such comments ultimately betrayed, not confidence in

recognizable conventions, but a yearning desire to ground a novel and deeply uncertain exercise.

Consequently, the interpretive rules that Federalists advanced amounted to a hodgepodge.

The extent to which they justified interpretive conventions by appealing to such imprecise

categories as “natural meaning,” “rational meaning,” or “common sense” revealed as much.

Alexander Hamilton declared at one point, “[t]he rules of legal interpretation are rules

of common sense.” Yet, at another, he suggested that interpreters ought to read a textual

provision in light of its “natural operation.” One could test, he argued at still another point,

whether it was “consistent with reason or common sense” or, alternately, if it was “unnatural and

38
unreasonable.”102 Madison, meanwhile, deferred to, as he put it, “rules of construction dictated

by plain reason.” Which, he later suggested, amounted to “degrees of probability” or “fair

construction.”103 In making these assertions, it was unclear whether these Federalists were

primarily trying to convince their interlocutors more than they were themselves.

Hamilton’s own divergent thoughts on the subject perhaps best capture the deep

uncertainty that engulfed rules of constitutional interpretation. He was as good a commentator as

any for the topic: he boasted an incisive legal mind, did not suffer from lack of confidence, as a

precocious college student had grappled with questions of fundamental constitutional law during

the imperial crisis, had been a member of the Philadelphia Convention, had already taken a deep

interest in the judicial and jurisprudential implications of the Constitution during ratification,

and, in writing so many installments of the Federalist, had been forced to think systematically

about the document under consideration. Accordingly, he commented with some frequency on

interpretive canons, often in an attempt to refute what he took to be the evident misreadings by

the Constitution’s critics. In so doing he was seemingly of two minds. For, on the one hand, he

spoke confidently of the applicability of certain conventional legal interpretive rules to the

Constitution, such as when he invoked—“a specification of particulars is an exclusion of

generals” and “the expression of one thing is the exclusion of another”—to disparage, not that

critics were using these rules, but how they had been doing so. Relatedly, in an earlier essay he

approvingly referred “to what lawyers call a NEGATIVE PREGNANT; that is a negation of one

thing [is] an affirmance of another.” And in a later contribution, in which he also favorably

102
Publius [Alexander Hamilton], “The Federalist 83,” New York, May 28, 1788, DHRC, XVIII: 115-116; Publius
[Alexander Hamilton], “The Federalist 32-33,” New York Independent Journal, January 2, 1788, DHRC, XV: 219;
Publius [Alexander Hamilton], “The Federalist 83,” New York, May 28, 1788, DHRC, XVIII: 116.
103
Publius [James Madison], “The Federalist 40,” New York Packet, January 18, 1788, DHRC, XV: 404; James
Madison, Virginia Ratifying Convention, June 16, 1788, DHRC, X: 1318-1319; Publius [James Madison], “The
Federalist 40,” New York Packet, January 18, 1788, DHRC, XV: 404.

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invoked Blackstone in order to justify restrictions on ex post facto laws, he followed Madison’s

assertion in Federalist 44 that every constitutional word had to be afforded meaning. 104 And yet,

despite these several invocations of conventional legal rules to clarify the Constitution, he also

strenuously contended that certain legal maxims “would still be inapplicable to a constitution of

government.” For, he went on, “In relation to such a subject, the natural and obvious sense of its

provisions, apart from any technical rules, is the true criterion of construction.” 105 Even Hamilton

was willing to maintain that a constitution was sufficiently different from other kinds of legal

instruments to merit a decidedly distinct interpretive protocol. He thus managed to affirm the

propriety of legal rules while simultaneously casting profound doubt on them.

When it came to interpretive rules, then, the only thing that was clear was that nothing

was clear. These protocols were, thus, not fixed and readily understood, as so many have

claimed, but instead dynamically in flux. 106 Between the various suggestions put forth by Anti-

Federalists and Federalists alike, rules of interpretation were fractured, partial, and contradictory.

Debates over interpretive rules, thus, illustrate how misleading it is to claim that the Constitution

was born, not only a written text, but any one thing, for they reveal, more than anything else, just

104
Publius [Alexander Hamilton], “The Federalist 81,” New York, May 28, 1788, DHRC, XVIII: 115; Publius
[Alexander Hamilton], “The Federalist 32-33,” New York Independent Journal, January 2, 1788, DHRC, XV: 218;
Publius [Alexander Hamilton], “The Federalist 84,” New York, May 28, 1788, DHRC, XVIII: 129.
105
Publius [Alexander Hamilton], “The Federalist 83,” New York, May 28, 1788, DHRC, XVIII: 116.
106
Thus, the long-standing obsession with discovering the Founders’ original interpretive intent should be
fundamentally rethought. For leading examples of this search, see Powell, “The Original Understanding of Original
Intent”; Raoul Berger, “‘Original Intention’ in Historical Perspective,” George Washington Law Review 54 (Jan. and
Mar. 1986), 296-337; Lofgren, “Original Understanding of Original Intent?”; Leonard W. Levy, Original Intent and
the Framers’ Constitution (New York: Macmillan, 1988); Natelson, “The Founders’ Hermeneutic”; McGinnis and
Rappaport, Originalism and the Good Constitution, 116-138—which builds from John O. McGinnis and Michael B.
Rappaport, “Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction,”
Northwestern Law Review 103 (Spring 2009), 751-802. For a compelling critique of this problematic tendency, see
Saul Cornell, “Meaning and Understanding in the History of Constitutional Ideas,” Fordham Law Review 82 (Nov.
2013), 721-755, 733-740. For alternative takes far more appreciative of the dynamism of interpretive modes, see
Jack N. Rakove, “The Original Intent of Original Understanding,” Constitutional Commentary 13 (Fall 1996), 159-
186; and Nelson, “Originalism and Interpretive Conventions.”

40
how confused early constitutional disputants were about what kind of an object they were, in

fact, talking about.

III. The Uncertain Constitution

The ratification debates—which finally came to an end in July of 1788—traversed a vast

and diverse rhetorical map. Debating the new Constitution had brought language to the fore and

begun to tether it to constitutional issues for the first time. But in spite of this development—and

in many ways because of it—much remained in deep flux. Even if participants were grasping

that language was connected to constitutionalism—somehow and some way—by the end of

ratification they had only begun to scratch the surface of what that meant. They had raised far

more questions than they had answered. Consequently, the fundamental character of the

Constitution (was it finished or unfinished?); its nature as an object (was it ultimately a text and

if so what kind?); its meaning (was it clear and determinate or vague and indeterminate?); its

parameters of acceptable usage (did it come with any built-in rules and, if not, where could

suitable ones be located?); and its relationship to subsequent political generations (were future

leaders to flesh out and add to its meaning or simply be constrained by its provisions?); were

each matters that remained deeply unsettled.

It would take many subsequent debates—not over accepting or rejecting the Constitution

but, once it had become supreme law, over constructing a working polity under it—for American

political leaders to fully come to terms with the Constitution that they had created and for its

fundamental characteristics to take shape. But what is clear is that the Constitution was in

considerable flux by the end of 1788—not just its meaning or purpose, but its core identity.

Nothing revealed that better than its status as a putatively written text. While the form of

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constitutional imagination that privileged its writtenness, so neglected and scorned prior to 1787,

had begun to acquire logic and power during the ratification debates, it still had to compete with

rivals that denied its propriety. While it remains popular to assume the Constitution is written in

the way water is made of hydrogen and oxygen, such was emphatically not the case when the

Constitution was born. If people wish for the Constitution to change, or not change, or if they

just hope to better understand how it has changed through American history—it is valuable to

grasp the often-obscured ways in which it was so dramatically changing from the beginning.

In this regard, we might be inclined to appreciate our own unwitting captivity. If

Americans appreciate that they are held captive by a language of constitutionalism that

presupposes a contingent conception of the Constitution itself, they might recognize that fidelity

to the Constitution does not necessarily entail fidelity to a particularly tenacious way of seeing it.

But that can never happen until the contingency is laid bare, until a certain picture of

constitutionalism is shown to be anything but essential.

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