Vol. 33 No. 04 (May 2023) pp. 44-46
THE ANTEBELLUM ORIGINS OF THE MODERN CONSTITUTION: SLAVERY AND THE SPIRIT OF THE AMERICAN FOUNDING, by Simon J. Gilhooley. Cambridge: Cambridge University Press, 2020. pp.273. Cloth $110.00. ISBN: 978-1-108-49612-4. Paper $29.99. ISBN: 978-1-108-79145-8.
Reviewed by Christopher Childers. School of History, Philosophy, and Social Sciences. Pittsburg State University. Email: rchilders@pittstate.edu.
Understanding the origins and evolution of American constitutional interpretation has occupied the work of historians and political scientists for some time. But more recently, a fresh body of work has emerged that reexamines how our constitutional thought developed over time. Scholars such as the historian Jonathan Gienapp, in his book THE SECOND CREATION: FIXING THE AMERICAN CONSTITUTION IN THE FOUNDING ERA, have analyzed how the idea of a fixed Constitution came into being during the early American republic. Early Americans developed a notion of constitutionalism that made the Constitution of 1787 a fixed artifact of its time with unchangeable meanings, rather than a more flexible document imbued with uncertainty. In doing so, early Americans helped determine the future course of how Americans interact with and interpret their Constitution.
In THE ANTEBELLUM ORIGINS OF THE MODERN CONSTITUTION: SLAVERY AND THE SPIRIT OF THE AMERICAN FOUNDING, Simon J. Gilhooley explores one particular aspect of the broader argument that Gienapp and other historians have made by arguing that the debates over slavery and abolition led early Americans to believe that the Constitution must be read, interpreted, and implemented within the lens of the founding era. That decision, Gilhooley argues, led to a constrained vision of constitutional interpretation that has characterized American political development to this day.
The rise of the slavery question in the early republic became constitutionalized as proslavery and antislavery partisans sought to use the supposedly fixed meaning of the constitution—as they saw it—to support their claims. Though Gilhooley writes as a political scientist and makes an argument from that perspective, his book focuses intensely on this history of constitutionalism in the slavery debates in the early republic. He uses this historical debate to make a point about politics and constitutionalism in the modern era. American constitutionalism, according to Gilhooley, has been too wedded to the idea of historical fixity; that is, our politics has been constrained by the idea that constitutional interpretation is “tied back to a moment of origin” (p. 21). In other words, Gilhooley suggests that originalism is somewhat undemocratic because it forces the present polity to defer to past judgment. At the same time, Gilhooley does not seem to espouse the concept of a living constitution as many modern-day politicians and students of politics endorse because it, too, ties the present to a version of the past, albeit a contested one where people can balance the spirit of the founding with contemporary needs. Instead, Gilhooley calls for a “popular sovereign unmoored to a particular moment in secular time” (p. 22). How this might unfold is the subject of his conclusion.
To make his argument, though, Gilhooley uses the history of the debates over slavery and abolition—particularly in the District of Columbia—before the Civil War. Much of this book uses historical analysis and narrative in attempting to prove its thesis. The book is built from a close reading of various newspapers and pamphlets, as well as congressional debates from the antebellum era, all of which chronicle the slavery debate as it unfolded in Congress and in the press. In dense, carefully researched analysis of the emergence of abolitionism, Gilhooley analyzes how the slavery debate changed between the 1820s and 1830s from free people of color using the rhetoric of the Declaration of Independence to argue for the freedom of the enslaved to a circumscribed definition of who constituted the people in American politics. Free Black thought emphasized the revolutionary rhetoric of 1776, but subsequent generations muted it in an effort to preserve the constitutional compromises over slavery, and prevented the question from sundering the Union. In doing so, however, they transformed American constitutionalism into something static, unchangeable, and essentially conservative with respect to the preservation of enslavement. Gilhooley’s historical research is thorough and, in many respects, persuasive. The great compromisers of the early 19th century did save the Union for a time, but in doing so, they abandoned almost every hint of Revolutionary-era guilt over slavery and any desire to see it abolished in the future.
Gilhooley sees the debate over slavery in the District of Columbia as a distinctly constitutional discussion, and no doubt, it did hinge on the fact that the Constitution vested authority over the federal district in Congress. However, much of the debate was political; a way for abolitionists to strike a blow against the proslavery cause through political means because of the unique nature of the district itself. By the late 1830s, the debate had led to a conservative understanding of the Constitution and constitutional interpretation that protected slavery rights via the myriad compromises negotiated since the founding. By “layering legislative compromises atop each other,” and adhering to the “virtue of moderation” that the compromisers repeatedly espoused, Gilhooley argues that compromise itself became a form of constitutional practice, and that it led to a conservative interpretation that protected slavery (p. 118).
Gilhooley’s history is thoroughly researched and exhaustively documented. Historians of the early republic, as well as slavery and abolition, will find much of this work well argued, if familiar. The history, though, is a means for arguing his main point: that the American constitutional project is in need of a revision that prevents the past from constraining the present. In the conclusion, Gilhooley turns to Thomas Paine and Thomas Jefferson to argue for a new mode of constitutionalism that embraces Paine’s idea of an “eternal now,” in which each generation is viewed as sovereign without being encumbered by the past. Likewise, Jefferson—at least in his more radical moments—disdained the notion of a perpetually binding constitution. Gilhooley rightly notes that modern scholars have attempted to moderate Jefferson’s views in favor of a more benign revolutionary spirit. Of course, Jefferson moderated himself, and even became rather conservative in his later years, as the Missouri crisis roiled the union. The Jefferson of 1819 is dedicated to the preservation of the union and the idea of compromise. Generational sovereignty, it seems, had given way amid the advent of the politics of slavery.
Interestingly, Gilhooley argues that although Jefferson’s “conception of the people” centered on white males who committed to preserving the union they created, we can nonetheless interpret his political theory “with an expansive conception of the people in mind” (p. 253). One has to ask though, why such a reading of the third president’s political philosophy—a “Living Jefferson” if you will, suffices and yet a “Living Constitution” is unsatisfactory.
In the end, Gilhooley embraces Jefferson’s notion of ward republics, where popular sovereignty is exercised through what he calls “radically continuous constitutionalism” (p. 257). This does not negate the need for a written constitution, he argues, though one wonders how a written constitution fits within the framework of a perpetual reconceptualization of constitutionalism itself. If citizens are “authors continually writing and rewriting their own story,” as Gilhooley suggests, then it seems clear that a constitution must be fixed in a particular historical moment—otherwise there is no reason for recrafting it in perpetuity (p. 257). And how would perpetual constitutionalism work in practice? Would it be akin to the United Kingdom’s so-called unwritten constitution?
One could argue that Gilhooley’s premise is based first on an argument that the American Constitution no longer represents the will of the people and that it is impossibly complicated to amend. Many scholars and citizens would agree with the latter, but the former is still very much up for debate as many people still believe that our Constitution—one of the oldest in the world—is protean enough that it operates well, or well enough. In fact, one could use the very history that Gilhooley chronicles in this book, that the United States altered its proslavery Constitution to abolish enslavement, to argue that the “Living Constitution” can indeed change over the generations.
Whether one finds Gilhooley’s argument persuasive or not, he has undeniably produced a book that shows how modern constitutional debates have clear historical precedent. Moreover, his ability to integrate political theory and historical analysis is commendable.
REFERENCES:
Gienapp, Jonathan. The Second Creation: Fixing the American Constitution in the Founding Era. Harvard University Press, 2018.
© Copyright 2023 by author, Christopher Childers.
